WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87 …
Order excluding media representatives or prohibiting publication
(7) Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
Prohibition re identifying child
(8) 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.
Prohibition re identifying person charged
(9) 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 …
Offences re publication
(3) 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.
COURT FILE NO.: FS-21-22402 (Toronto)
DATE: 20211210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Toronto
Applicant (Respondent)
– and –
H.F. (mother), R.B. (father of JB) and G.W. (father of NF and JF)
Respondents (Appellant)
Katherine Georgious, for the Applicant (Respondent)
Jessica Gagne, for H.F. (mother), Respondent
M. (Linda) Choi, for R.B. (father of JB), Respondent (Appellant)
HEARD: September 27, 2021, at Toronto by video conference
R. A. Lococo J.
REASONS FOR JUDGMENT
I. Introduction
[1] The appellant R.B. appeals from the final order of Justice Roselyn Zisman of the Ontario Court of Justice dated November 16, 2020, with reasons set out in Reasons for Decision dated November 16, 2020.
[2] The order was made following a nine-day trial of a status review application brought by the Children’s Aid Society of Toronto under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”). The children who are subject to the order are JB (who is 12 years old), NF (age nine) and JF (age eight).
[3] The appellant is the biological father of JB and the pre-intervention caregiver of all three children. He was previously in a relationship with the respondent H.F., the children’s mother. The respondent mother was represented by counsel at the appeal hearing but did not file responding material. She takes no position on the appeal. The respondent G.W., the biological father of NF and JF, did not participate in the trial or the appeal.
[4] The trial judge’s final order includes the following terms:
a. JB is placed in extended Society care, with access by JB (the access holder) in the discretion of the Society;
b. NF and JF are placed in their paternal aunt’s custody pursuant to s. 102 of the CYFSA;
c. Access by NF and JF to the appellant shall take place at a supervised access centre once per month on a day convenient to the paternal aunt and those children;
d. Access by NF and JF to the respondent mother shall be supervised by the paternal aunt, with location, duration, frequency, dates and times to be arranged between the paternal aunt and respondent mother; and
e. Access between the siblings shall occur twice per month, supervised by the paternal aunt.
[5] At the appeal hearing, I varied the trial judge’s order on consent to provide that each of respondent mother and the appellant shall have a minimum of one access per month with JB, for a minimum of one hour, with the date and time, location and level of supervision to be as determined by the Society.
[6] On this appeal, the appellant seeks an order overturning the trial decision and placing the children in his care subject to Society supervision, alleging that the trial judge made errors of fact and law. In the alternative, the appellant seeks a new trial in the Ontario Court of Justice for disposition.
[7] The Society submits that this appeal is without merit and should be dismissed. The Society says that the trial judge made findings of fact that were well supported by the trial evidence and made no error in applying the law to the evidence.
[8] For the reasons below, I am dismissing the appeal.
II. Preliminary matters
[9] Before submissions on the merits, two preliminary matters were addressed at the appeal hearing.
[10] In August 2021, the appellant brought a motion to permit him to provide an affidavit as fresh evidence on the appeal with respect to matters arising since the trial. The appellant’s affidavit includes information about his access visits with the children and treatment he received relating to his use of alcohol. The treatment included a residential treatment program completed in December 2020 followed by a weekly aftercare program and participation in Alcoholics Anonymous meetings.
[11] The Society brought a cross-motion, seeking the admission of affidavits from two Society workers as fresh evidence on the appeal. The information included in their affidavits relates to the children’s general progress in the care of their current caregivers as well as the workers’ observations relating to the appellant’s recent access visits with the children.
[12] One of the Society’s affidavits also provides updated information with respect to criminal charges that had been outstanding against the appellant since December 2019, when he was charged with assault with a weapon against NF and JF. The charges related to his alleged use of a belt to discipline those children. The affidavit states that the children were scheduled to testify at the appellant’s trial on September 15, 2021 and were driven to the courthouse for this purpose. However, their testimony was not required because the appellant decided to plead guilty to the charges. A pre-sentence report was ordered and the matter put over to November 8, 2021, for sentencing.
[13] On consent, the evidence from both parties was admitted as fresh evidence on the appeal.
[14] The morning of the appeal hearing, appellant’s counsel also notified the Society of the appellant’s intention to seek an adjournment of the appeal hearing until after his sentencing. His counsel argued that the sentence he receives would be relevant to the outcome of the appeal, in which he seeks the return of the children to his care subject to Society supervision as well as continued access to the children should they remain with their current caregivers.
[15] I did not grant the adjournment and proceeded with the appeal hearing. I accepted the Society’s submission that the outcome of the sentencing hearing had no impact on the matters in issue in the appeal. I also agreed with the Society’s submission that further delay in resolution of the appeal was not consistent with the children’s need for finality about their future care, given the length of time that arrangements for their care have been in issue in these and prior proceedings.
III. Background facts
[16] The factual background related to the Society’s involvement with the children is set out in some detail in the trial judge’s reasons. By way of brief summary, the Society has been involved with all three children for virtually their entire lives. Each of them was apprehended from their mother’s care at or shortly after birth because of child protection concerns, including their mother’s capacity to care for the children.
[17] At various times, all three children were placed in the appellant’s care subject to Society supervision, including under an order dated March 30, 2017, under which the children were placed in the appellant’s care and custody for six months subject to Society supervision. Prior to that time, the children had at times been returned from the appellant’s care to the Society’s care because of concerns relating to the appellant’s alcohol abuse.
[18] When the children were placed in the appellant’s care in March 2017, the children’s special needs provided additional bases for the Society’s continued involvement with the children. JB has Autism Spectrum Disorder and is non-verbal. JF was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). As well, the appellant advised the Society that NF was assessed for behaviors that the ADHD clinic thought could be trauma related.
[19] The status review application that forms the basis of this appeal was commenced in September 2017, to review the six-month supervision order made in March 2017. In the status review application, the Society initially requested that the children remain with the appellant under a further supervision order. The appellant continued to work cooperatively with the Society, leading the Society to amend the application in early 2018 to seek an order granting the appellant custody of all three children under what is now s. 102 of the CYFSA. However, the children were removed from the appellant’s care and placed in the Society’s interim care in November 2018 after the appellant arrived to pick up the children from daycare in an intoxicated state and was belligerent with daycare staff.
[20] In January 2019, the Society again amended its status review application, seeking interim Society care orders for the three children. In July 2019, NF and JF were placed in the interim care of their paternal aunt, subject to Society supervision. JB remained with foster parents under the Society’s interim care.
[21] In the fall of 2019, Toronto police interviewed the child NF with respect to allegations that the appellant hit NF and JF with belts as punishment. (In her reasons, the trial judge found that the appellant hit the children, as alleged.) In December 2019, the appellant was charged with two counts of assault with a weapon against NF and JF.
[22] In December 2019, the Society amended its status review application a third time, seeking an order that JB be placed in extended Society care and that NF and JF be placed with their paternal aunt under a six-month supervision order.
[23] In March 2020, the Society amended its status review application a fourth time, seeking that NF and JF be placed in their paternal aunt’s custody under s. 102 of the CYFSA.
[24] In the period between the children’s return to Society care in November 2018 and the trial in September 2020, there were a number of instances that were indicative of the appellant’s inability to maintain sobriety, including attending in an alcohol-impaired state for counseling sessions and access visits and being hospitalized for reasons related to alcohol on a number of occasions in 2020.
[25] The trial of the status review application was heard over a nine-day period in September and November 2020. The trial judge provided her decision on November 16, 2020, as previously outlined.
[26] After the trial, the appellant undertook a one-month residential treatment program for substance abuse in November to December 2020. The program was followed by an outpatient aftercare program. The appellant also participated in Alcoholics Anonymous meetings.
[27] As previously noted, on September 15, 2021, the appellant pleaded guilty to assault with a weapon against NF and JF. The charges arose from allegations that the appellant used a belt to discipline those children. The appellant was scheduled to be sentenced for those offences on November 8, 2021.
IV. Issues to be determined on appeal
[28] As set out in the appellant’s notice of appeal and his factum, the issues to be determined on this appeal are set out below.
a. Test for care and custody under s. 113(8) of the CYFSA: Did the test for care and custody of the children in s. 113(8) of the CYFSA apply to this matter? Did the trial judge err in applying that test?
b. “Admissions” in treatment records: Did the trial judge err in treating certain portions of treatment records as “admissions” by the appellant? Did the trial judge err in reinterpreting the Statements of Agreed Facts based on such admissions from the treatment records?
c. Hearsay evidence from paternal aunt: Did the trial judge err in accepting hearsay evidence from the paternal aunt about statements made by JF and NF that had no verification by any Society workers?
d. Respondent mother’s testimony and appellant’s criminal record: Did the trial judge err in her conclusions regarding the respondent mother’s testimony? Did the trial judge err in her understanding of the appellant’s criminal record?
e. Society worker’s case notes: Did the trial judge err in excluding from evidence the case notes of one of the Society workers?
[29] As an additional ground of appeal set out in the appellant’s factum, he submitted that the trial judge erred in her conclusion that the appellant hit NF and JF with a belt based on police evidence. Given the appellant’s subsequent guilty plea to the criminal charges against him, the appellant is not pursuing this ground of appeal.
[30] In the balance of these reasons, I will first address the standard of review that applies on this appeal. I will then address the appellant’s grounds of appeal under the headings set out above.
V. Standard of review
[31] The standard of review for appeals is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness: Housen, at para. 8. On questions of fact, the standard is palpable and overriding error: Housen, at para. 10. On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. Otherwise, the standard on questions of mixed fact and law is palpable and overriding error, including with respect to the application of the correct legal principles to the evidence: see Housen, at paras. 36-37.
[32] A palpable and overriding error is "an obvious error that is sufficiently significant to vitiate the challenged finding of fact": Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at para. 39; Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201, at p. 267 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 291.
[33] In the child protection context, previous case law has emphasized the particularly high degree of deference owed to the trial judge on appeals.
[34] In Children's Aid Society of Toronto v. V.L. and P.L., 2012 ONCA 890, 299 O.A.C. 388, leave to appeal refused, [2013] S.C.C.A. No. 1112, the Court of Appeal (at para. 14) identified two overarching principles that apply on a child protection appeal: “the paramount consideration of the best interests of the child and the standard of review.” At paras. 15-16, the court explained as follows:
First, the court owes a special duty to ensure that the safety and well-being of children are protected. As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings.
Second, the degree of deference owed to the trial judge is particularly high in child protection proceedings. In C.(G.C.) v. N.B. (Min. of Health & Community Services), 1988 34 (SCC), [1988] 1 S.C.R. 1073, at para. 5, the Supreme Court described the standard of review applicable in such cases as "... trial judges' decisions, particularly in matters of family law, should not be interfered with lightly by appellate courts absent an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment."
VI. Test for care and custody under [s. 113(8)](https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html#sec113subsec8_smooth) of the [CYFSA](https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html)
[35] Did the test for care and custody of the children set out in s. 113(8) of the CYFSA apply to this matter? Did the trial judge err in applying that test?
[36] Where the Society makes a status review application with respect to a child under its care, custody or supervision, s. 113(8) of the CYFSA provides that the child “shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.”
[37] The appellant argues that the trial judge erred in law by failing to consider and properly apply the test in s. 113(8). The appellant notes that the order that was the subject of the status review application was the final order dated March 30, 2017, placing the children in the appellant’s care and custody for six months subject to the Society’s supervision. At the time the status review application was made, the children were in the appellant’s care and custody subject to Society supervision but were subsequently apprehended and placed in the interim care of the Society (in the case of JB) or the paternal aunt (in the case of NF and JF). The appellant says that in making her final order disposing of the status review application, the trial judge was required by s. 113(8) to place the children in the appellant’s care under the Society’s supervision (consistent with the order under review) unless satisfied that the children’s best interests required a change in the children’s care and custody. The appellant cites the decision of Summers J. in Children's Aid Society of Ottawa v. T.S., 2020, ONSC 879, 36 R.F.L (8th) 184) to support that position. According to the appellant, the trial judge’s failure to consider and apply the test in s. 113(8) was a reversible error.
[38] I disagree. By its terms, the test in s. 113(8) applies to determine the question of the child’s care and custody on an interim basis “until the [status review] application is disposed of”. That was the situation in T.S., where Summers J. was considering a motion by the respondent mother for interim care and custody of the child until final determination of the status review application then before the court. By its terms, s. 113(8) has no application when considering the child’s care and custody upon the final disposition of the status review application.
[39] In any case, even if s. 113(8) were applicable in this case, I see no reversible error in the trial’s judge’s determination of the children’s care and custody. When applicable, s. 113(8) requires that the children remain in the custody of their current caregiver unless the court is satisfied that the children’s best interests require a change in their care and custody. In her reasons, the trial judge correctly cited s. 74(3) of the CYFSA and, applying the applicable factors set out in that subsection, found that it was in children’s best interests to be placed in the care and custody of the Society (in the case of JB) or the paternal aunt (in the case of NF and JF). I see no error in principle or palpable and overriding error by the trial judge in reaching her conclusion.
[40] As well, as the trial judge indicated in her reasons, at para. 13, appellant’s counsel (both at trial and on appeal) conceded in her closing submissions that the children should remain in their current placements with the Society or the paternal aunt for six months, followed by a further status review, rather than being immediately returned to the appellant’s care under a supervision order. In these circumstances, it appears that the appellant was in agreement that it was not in the children’s best interests that they be returned to the appellant’s care at that time, supporting the conclusion that there was no failure to properly consider the application of s. 113(8).
[41] Accordingly, I see no merit in this ground of appeal.
VII. “Admissions” in treatment records
[42] Did the trial judge err in treating certain writings in treatment records as “admissions” by the appellant? Did the trial judge err in reinterpreting the Statements of Agreed Facts based on such “admissions” from the treatment records?
[43] After the children’s apprehension from the appellant’s care in November 2018, the appellant attended an outpatient alcohol addiction treatment program at the Centre for Addiction and Mental Health (CAMH) from January to July 2019. Dr Kendall, one of the treating doctors, testified at the trial as part of the Society’s case. During Dr. Kendall’s testimony, treatment records (which included Dr. Kendall’s notes of statements the appellant made to Dr. Kendall relating to his alcohol use) were admitted as evidence on consent: trial reasons, at para. 121. Later in the trial, treatment records authored by other CAMH personnel came before the court when the appellant was questioned about the contents of those records during the appellant’s cross-examination.
[44] The appellant submits that the trial judge erred in her reliance on certain portions of those treatment records as “admissions” relating to the appellant’s alcohol consumption. The appellant says that the trial judge erred in relying on those documents for the truth of their contents. He also says that the trial judge erred in permitting the Society’s counsel to cross-examine the appellant on the contents of those additional records without calling the persons who prepared the records as trial witnesses. In addition, the appellant says that the trial judge erred by “reinterpreting” the contents of the parties’ Statements of Agreed Facts based on such “admissions” from the treatment records.
[45] I disagree. I see no reversible error in the trial judge’s decision relating to the CAMH treatment records.
[46] When Dr. Kendall testified, the trial judge admitted into evidence case notes that Dr. Kendall made at the time of the appellant’s treatment (as Dr. Kendall was required to do as a medical practitioner). The trial judge was entitled to rely on the contents of the records for the truth of their contents under the business records exception from the hearsay rule: see Ares v. Venner, 1970 5 (SCC), [1970] S.C.R. 608, at p. 626. Since Dr. Kendall was a trial witness, she was available to be cross-examined on the contents of those case notes.
[47] Other CAMH treatment records were not admitted into evidence in the same fashion, since other CAMH personnel were not called as trial witnesses. However, the trial judge permitted the Society to use treatment records authored by other CAMH personnel to cross-examine the appellant when he testified at the trial, including to challenge the appellant’s testimony relating to the extent of his alcohol use by reference to statements attributed to him in the treatment records. I see nothing improper in allowing those records to be used for that purpose.
[48] As indicated in the trial transcript, the trial judge stated that she was entitled to rely on certain prior statements attributed to the appellant in the treatment records for the truth of their contents, relying on the traditional exceptions from the hearsay rule for business records and for admissions against interest: see Ares, at p. 626; R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653, at p. 664. I see no basis for concluding that this is one of those “rare cases” in which evidence that would otherwise be admissible under a traditional exception from the hearsay rule should be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case: see R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15, applying R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. Accordingly, I see no error in principle or palpable and overriding error by the trial judge in consideration of that evidence.
[49] The appellant also submits that in the trial judge’s summary of the parties’ Statements of Agreed Facts, she erred by “reinterpreting” the facts set out in those Statements by reference to the “admissions” by the appellant in treatment records. To the extent she may have done so, I see no error in principle, since in making findings of fact, the trial judge is entitled to consider all admissible evidence. However, upon review of the trial judge’s reasons, I see no material difference between the summary in her reasons and the contents of the Statements of Agreed Facts.
[50] Accordingly, I see no merit in this ground of appeal.
VIII. Hearsay evidence from paternal aunt
[51] Did the trial judge err in accepting hearsay evidence from the paternal aunt about statements made by JF and NF that had no verification by any Society workers?
[52] The appellant submits that statements made by JF and NF were entered into evidence inappropriately through the paternal aunt’s testimony and should not have been accepted as evidence without an admissibility hearing. The appellant says that the trial judge erred in relying on such evidence, referring in his factum to the trial judge’s findings in paras. 224, 227 and 228 of the trial reasons, as follows
[224] With respect to NF and JF, their paternal aunt testified that when they were placed in her care, they were very active and had no routines or structure. There was a great deal of inappropriate touching between them and she needed to teach them to respect each other’s personal space. NF also used inappropriate and adult language.
[227] [The paternal aunt] expressed concerns about NF who told her that she used to get up early, climb on the counter to give JB and JF cereal. She also swept the floor and cleaned the bathroom like an adult. NF told her that she likes to do this and when she grows up she wants to be a maid. The paternal aunt tells her that this is not something to aspire to be.
[228] NF and JF spoke to her about [the appellant] giving them a cold shower and hitting them with a belt as punishment. She reported these statements to the society [footnote 6]. She also testified she does not question them.
[footnote 6] No submissions were made as to the purpose for which these statements were being introduced. I have not considered them for the truth but as context for further steps then taken by the society.
[53] Contrary to the appellant’s submissions, I see no reversible error in the trial judge’s treatment of the paternal aunt’s evidence.
[54] To a significant extent (particularly in para. 224 of the trial reasons), the trial judge’s conclusions appear to be based on the paternal aunt’s personal observations of the children rather than what they told her. That evidence was direct evidence, not hearsay. To the extent that the paternal aunt was testifying about her personal observations of the children’s behaviour, there would be no reason to hold an admissibility hearing.
[55] As appellant’s counsel noted, review of the trial transcript confirms that there was no voir dire to consider the admissibility of the paternal aunt’s evidence about disclosure that the children made to her. However, the trial transcript does indicate that when the paternal aunt began to discuss such disclosure when testifying, the trial judge advised that she would allow the paternal aunt to advise the court about statements the children made directly to her but would hear submissions about whether the evidence was admissible and for what purpose. No such submissions were subsequently made.
[56] In the absence of such submissions, the trial judge appropriately stated in her reasons that she was not accepting those statements for the truth of their contents but rather “as context for further steps then taken by the society” in relation to the children. Use of the evidence of the children’s disclosure for this limited purpose took the evidence outside of the realm of inadmissible hearsay, since evidence of the children’s disclosure was not being considered for the truth of its contents. Therefore, the absence of an admissibility hearing is a moot point.
[57] In these circumstances, I see no error in principle or palpable and overriding error in the trial judge’s consideration of the paternal aunt’s evidence.
IX. Respondent mother’s testimony and appellant’s criminal record
[58] Did the trial judge err in her conclusions regarding the respondent mother’s testimony? Did the trial judge err in her understanding of the appellant’s criminal record?
[59] By way of background, as indicated in the trial reasons, at para. 11, the respondent mother initially supported the Society’s position at trial that JB should remain in the Society’s care and that NF and JF be placed with the paternal aunt. However, prior to giving evidence at trial, the respondent mother changed her position and supported the appellant’s position that NF and JF be placed with the appellant subject to Society supervision. In the trial reasons, at para. 109, the trial judge found that the respondent mother’s testimony indicated “a lack of any details or specifics as to why she changed her position”, but the trial judge found in any event that the appellant’s position “is not strengthened by the mother supporting him.”
[60] In his factum, the appellant submits that the trial judge erred in her conclusion that the respondent mother’s testimony had no effect in persuading the trial judge to extend the Society’s involvement with NF and JF by placing them with the appellant under a supervisory order. The appellant reviewed various passages of the respondent mother’s testimony to support his position that the trial judge erred in her assessment of the respondent mother’s evidence.
[61] I disagree. It is the responsibility of the trial judge to assess all of the evidence and determine its appropriate weight. I see error in principle and no palpable and overriding error in the trial judge’s consideration of the respondent mother’s evidence.
[62] The appellant also submits that the trial judge erred in assuming that the appellant had two criminal convictions in 2008 relating to the respondent mother (when in fact one of them had a different complainant), thereby negatively impacting the trial judge’s view of the appellant.
[63] Again, I disagree that the trial judge made a reversible error. If she was in error in assuming that there were two criminal convictions relating to the respondent mother rather than one, that error was not in all the circumstances a palpable and overriding error, not being of sufficient significance to affect the outcome. While the trial judge referred to the appellant’s 2008 convictions (trial reasons, at paras. 39-40), the trial judge did not cite the appellant’s dated criminal record or domestic violence as protection concerns in this case. As well, the trial judge did not make any negative credibility findings against the appellant based on those considerations, but rather does so on the basis that the appellant’s evidence was “evasive, rambling and contradictory”: trial reasons, at para. 128.
[64] Accordingly, I see no merit in this ground of appeal.
X. Society worker’s case notes
[65] Did the trial judge err in excluding from evidence the case notes of one of the Society workers?
[66] After the end of oral trial testimony, the Society (on consent) sought to have admitted as evidence 11 pages of case notes made by a Society worker who had not testified at the trial, relying on the business records exception from the hearsay rule: see trial reasons, at para. 116. Those records included notes of the worker’s interactions with the appellant, alleged statements that the appellant made to her, and alleged disclosures by NF and JF. In her reasons, the trial judge noted that the appellant’s counsel did not object to admissibility for failure to provide prior notice, but “raised the issue of fairness”: trial reasons, at paras. 118-119.
[67] In her reasons, at para. 120, the trial judge ruled that the worker’s case notes were not admissible as a matter of fairness to the appellant, finding that “the prejudice to [the appellant] outweighs the relevance of the evidence of [the Society worker].” The trial judge noted that since the worker had not testified, there was no opportunity to cross-examine her, including with respect to her “experience and training in interviewing the children and the circumstances surrounding the making of those disclosures as it is [the appellant’s] position that the children were coached.” The trial judge also noted that since the worker’s case notes were not filed until after the appellant testified, “it is not clear that he and his counsel were aware of what portions of the case notes the society would be relying on”, depriving the appellant of “the opportunity to dispute those statements” in his testimony.
[68] The appellant takes issue with the trial judge’s statement that appellant’s counsel made a fairness argument against the admission of the worker’s notes, noting that appellant’s counsel repeatedly referred to the contents of the case notes in her closing submissions at trial. The appellant submits that the trial judge erred in refusing to admit the worker’s case notes as evidence. In his factum, he also submits that the Society should have sought to admit as evidence the notes of all its workers over the 11 years that the Society had been involved with the children.
[69] In response, the Society argues that the trial judge made no errors in ruling the worker’s case notes inadmissible. The Society says that it was appropriate for the trial judge to exercise her gatekeeper function to ensure that the evidence admitted at trial meets the thresholds of reliability and necessity, even if the parties agree that it should be admitted. The Society also notes that the appellant was not prejudiced by exclusion of the case notes, since portions of it were highly prejudicial to the appellant. In addition, the Society disputes that it would be appropriate to burden the court with 11 years of Society case notes, also noting that the appellant could have sought disclosure of the case notes from the Society for that purpose but did not do so.
[70] In all the circumstances, I do not agree with the appellant that the trial judge made a reversible error by refusing to admit the worker’s case notes.
[71] As argued by the Society’s counsel, it is clear that the trial judge had significant concerns about the probative value of the case notes when weighed against the prejudice to the appellant. The trial judge appropriately exercised her gatekeeper function in refusing to admit that evidence. She made no error in principle in doing so.
XI. Disposition
[72] As set out in my endorsement dated September 27, 2021, the trial judge’s order dated November 16, 2020 was varied on consent to provide that each of respondent mother and the appellant shall have a minimum of one access per month with JB, for a minimum of one hour, with the date and time, location and level of supervision to be as determined by the Society.
[73] For the foregoing reasons, the appeal is otherwise dismissed.
R. A. Lococo J.
Released: December 10, 2021
COURT FILE NO.: FS-21-22402 (Toronto)
DATE: 20211210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Toronto
Applicant (Respondent)
– and –
H.F. (mother), R.B. (father of JB) and G.W. (father of NF and JF)
Respondents (Appellant)
REASONS FOR JUDGMENT
R. A. LOCOCO J.
Released: December 10, 2021