B.L. v. S.L., 2012 SKCA 38

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 38 Date: 20120327 Docket: 1658 IN THE MATTER OF AN APPLICATION UNDER The Child and Family Services Act AND IN THE MATTER OF “E.”, BORN […], 2006 “J.”, BORN […], 2007 Between: B.L. and S.L. (Respondents) Appellants - and - The Ministry of Social Services (Applicant) Respondent

Coram: Jackson, Ottenbreit and Herauf JJ.A. Counsel: Jill M. Drennan for the Appellants Barbara C. Mysko for the Respondent Appeal: From: 2008 SKQB 302 Heard: September 28, 2011 Disposition: Dismissed Written Reasons: March 27, 2012 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Herauf Ottenbreit J.A. I. Introduction [ 1 ] This appeal concerns a permanent order of committal to the Ministry of Social Services (the “Ministry”) under s. 37(2) of The Child and Family Services Act , S.S. 1989-90, c.

C-7.2 (the “ CFSA ”) for E.L. (“E.”), born […], 2006 and J.L. (“J.”), born […], 2007. B.L. and S.L., the parents of E. and J., (the “parents”) appeal that permanent order arguing it should not have been made because certain evidence was erroneously admitted at trial and because the trial judge did not properly apply the provisions of the CFSA to their situation. They also seek to adduce further evidence, with respect to their improving parenting skills. For the reasons which follow, their appeal is dismissed. II. Facts and Background [ 2 ] Both E.E. and J. are special needs children.

E. was diagnosed with fetal alcohol syndrome and J. suffers from physiological problems. Altogether, S.L. has eight children, the youngest four fathered by B.L. Five of Ms. L.’s children were placed in long-term care with the Ministry and the sixth resides with relatives in Winnipeg pursuant to a private agreement. A number of Ms. L.’s children have left foster care and returned to her home. [ 3 ] Ms. L. admitted to a history of alcohol and drug abuse. This led to instances of domestic violence between the parents. Ms.

L. had, at the trial date, taken steps to address her addiction issues and entered into a series of treatment programs. On the day of the trial, she had been sober for one year with the exception of two slip-ups. [ 4 ] Mr. L. is 60 years old; 20 years older than Ms. L. He testified he was an alcoholic and binge-drinker. He, like Ms. L., had entered into a number of treatment and support programs to address his addictions and anger management issues. Mr.

L. indicated to the court he had changed and that at the minimum was in the process of the transition to sobriety and appropriate domestic behaviour. [ 5 ] Expert evidence at trial indicated E. had a number of special needs and developmental issues including fetal alcohol syndrome

(“FAS”), behavioural problems that might indicate attention deficit hypertension disorder, developmental difficulties with fine motor skills, language and social skills, hypotonia and bilateral congenital cataracts over both eyes. E. also requires special signed forms of communication due to verbal development delays and a high energy, high calorie and fat diet including supplements. The expert witness at trial indicated a FAS child needs a structured environment, lots of attention, repetitive learning and patience from caregivers.

The evidence indicated there was an increased probability of behaviour and learning problems. He requires occupational physical therapy to address his sensory deficit and developmental issues. [ 6 ] J. was not born with any signs or symptoms of drug or alcohol exposure. He does, however, have special needs. Following his birth, J. suffered from tremors and tenderness and rigidity in muscles, delayed expressive language and skill development and rigidity in back, neck, hips and feet and some circulation deficiency in his lower legs. J. requires physical therapy at Wascana Rehabilitation Centre.

He was, at the time of trial, receiving tongue training and relaxation therapy. [ 7 ] The parents maintain consistent visitation with the children whose older siblings also participate in such visitation. Colleen W. is the children’s foster mother and a proposed adoptive parent. She is Métis and has a Bachelor of Education degree with a focus on elementary education, psychology and special needs children. She facilitates J.’s and E.’s medical and therapeutic appointments every week and has engaged in therapy to obtain coping strategies to manage E.’s high needs, including his sleeping problems.

She involved both children in her family gatherings and is sensitive to aboriginal and Métis cultural issues. At the trial, Colleen W. testified she favoured an open adoption or semi-open adoption to preserve parental contact with J. and E.. III. Decision of the Trial Judge [ 8 ] At trial the Ministry proffered as evidence, copies of Integrated Electronic Information System (“IEIS”) records of the Regina Police Service pursuant to s. 52 of The Evidence Act , S.S. 2006, c. E-11.2.

The IEIS records contained entries regarding police involvement with the parents, including calls from third parties; attendances at the parents’ home; admissions from the parents themselves and from third parties; and particulars of alleged criminal offences upon which charges did not proceed or convictions did not result. [ 9 ] The trial judge ruled that the IEIS records were business records within the meaning of s. 52 of The Evidence Act at para. 44 of the trial decision: A ruling was made at the conclusion of the voir dire .

The court held that the Integrated Electronic Information System records are business records within the meaning and application of s. 52 of The Evidence Act of Saskatchewan. Staff Sgt. Wyatt, being an employee of the Regina Police Service who has knowledge of the records within the meaning of s. 52(3) was allowed to testify. I found that the four conditions of s. 52(2) had been met and provided oral reasons thereof. The court then proceeded to rule that exhibits M-85 and M-86 for identification would be admissible and made full exhibits.

The court then put the respondents to their election to call evidence to the contrary. The mother and father elected not to call evidence to disprove the contents of the Integrated Electronic Information System records. As a consequence a number of police witnesses were excused from testifying as to their respective entries into the records. Once the records were admitted into evidence it remained for the court to review the Integrated Electronic Information System records and determine what is hearsay, opinion or not reliable evidence.

As trier of the facts, the court weighs the Integrated Electronic Information System computer records with all other evidence entered at the trial. The trial judge went on to state that where he found that the IEIS records contained hearsay, he did not rely upon or accept that hearsay. [ 10 ] The Ministry also tendered, pursuant to s. 30 of the CFSA , sentencing transcripts of prior criminal proceedings relating to the parents. The trial judge also admitted these transcripts. At para. 49 he stated:

Section 30 of The Child and Family Services Act provides for expediting a child protection hearing. In other words, it should not be a burden imposed upon the Minister to subpoena each police officer to testify as to the events of impaired driving, intoxication and domestic violence. It cannot be argued that there is a real prejudice to the family when the same evidence could be introduced, albeit in a more arduous and time consuming manner.

Section 30 addresses that issue and expediency is permitted as an alternative. The transcripts provide perspective and clarity to the record of conviction which may be useful to the court in a child protection hearing. Therefore, on balance, the salutary effect of admitting the transcripts along with the remaining record of the proceedings outweighs the alleged perception of prejudice to the parents in this hearing and their right to a fair hearing. In reaching this conclusion I referred to the decision of Wilkinson J., as she then was, in L.M.O., Re 2003 SKQB 47 ; (2003), 230 Sask. R. 55 (Sask. Q.B.).

Wilkinson J. adopts the reasoning that s. 30, “allows the court to take into consideration any evidence taken on any previous proceeding if the evidence is informative in any way as to the psychical, psychological, social or physical development of the child or parent, and is relevant to any matter under consideration by the court.” [emphasis in original] The Ministry attempted to have admitted as evidence the case workers’ recording, assessment and case plan notes and intake mobile crisis and police reports. The parents’ counsel objected to the admission of the workers’ recording, assessment and case plan notes.

Although submissions were made on that issue and the trial judge reserved his decision on their admissibility, he never determined that issue nor did he admit these documents.

[11] After reviewing all the evidence and the provisions of the CFSA, the trial judge determined that returning the children to theirparents with supervision under s. 37(1)(

a) was not in the children’s best interests. The trial judge then considered the options of atemporary care order and an order for permanent custody and concluded a permanent order was in the children’s best interests. Thesubstance of his finding is found at paras. 153, 155 and 158 of his decision as follows: 153 If a temporary care order is to be considered the court must be satisfied that for the first time in many years the mother and fatherpresent a reasonable prospect of change, within a reasonable length of time, and, with a reasonable use of resources, if needed.

See paras.50 and 51 Saskatchewan (Department of Community Resources) v. S.K., [2007 SKQB 390]. … 155 The evidence clearly establishes the mother and the father have long standing addictions. Their short marriage has beenpunctuated with events of domestic violence. The evidence also establishes that at this trial the mother is once again advancing the samereasons and arguments in her own defence that she has repeatedly made over the years. Her future road is paved with good intentions,but, the mother has failed to establish more than six months of sobriety.

Clearly everyone hopes that the mother will rise above heraddictions and support her efforts to maintain sobriety, a drug free existence and to never again be a victim of domestic violence or anabuser herself. Placing E.E. and J., or either child with the mother will not assist her in this pursuit of rehabilitation. Both children are tooneedy and demanding and shall remain so for some significant length of time.

The totality of evidence presented at this trial does notdemonstrate that the mother is equipped to handle either E. nor J., with or without the father's aid nor with the moral or available supportof her new found community. The same conclusion applies to the father. While the mother and the father need incentives and cause forhope as they proceed with their prospective rehabilitations, placing E. and J. with them on a temporary basis pursuant to s. 37(1)(b)would be wrong.

The court finds that the stress and responsibility of E., in particular, would compromise the mother and the father'schances of a successful rehabilitation.

However, such incentive for the mother and the father can also come from two other prospects:First, the secure knowledge that E. and J. are being well cared for and treated for the special needs inflicted upon them, and, second, thatno one has suggested in these proceedings that the father and the mother, and their remaining siblings, cannot participate in E. or J.'sfuture. … 158 By the above process of elimination, the court is left with one remaining option -- a permanent committal of E. and J. to theMinister.

The Minister in turn proposes the permanent foster care of [Colleen W.] and the prospect of adoption. [Colleen W.] is willing toconsider the prospect of an open adoption by which E. and J. would have such knowledge and familiarity with their biological parentsand siblings as is in their reasonable best interests. IV. Standard of Review [12] The governing standard of appellate review has been set forth by Klebuc C.J.S. in D.T.P-L.C. (Re), 2011 SKCA 101: 8 This Court may vary or set aside the decision under appeal if the trial judge made a material error in law. See: ss. 63(1), (2) and(6) of the Act.

What constitutes an error in law was succinctly articulated by Cameron J.A. in Gallop v. Mulatz, 2008 SKCA 29, [2008] 5W.W.R. 231, at paras. 32-34: [32] Some of the points give rise to issues of fact, others to issues of law, and still others to issues involving the application of the law tothe facts. [33] To the extent they give rise to issues of fact, in the sense they call into question the findings of fact made at trial, it is now clear thatthe power of the Court of Appeal to act on its own view of what the evidence proves, as provided for by s. 14 of The Court of Appeal Act,2000, S.S. 2000, c.

C-42.1, is fettered in its exercise. Before exercising this power the Court must first be satisfied that a finding of fact attrial rests on a "palpable and overriding error" by the trial judge, which is to say the Court must be satisfied the impugned finding is"clearly wrong" or "unreasonable" or "unsupported by the evidence": H.L v. Canada (Attorney General), 2005 SCC 25 , [2005]1 S.C.R 401 (per Fish J. at paras. 55-56).

Only then may the Court set aside an impugned finding of fact and act on its own view of whatthe evidence proves in relation to the fact in controversy. [34] To the extent the points give rise to issues of law, in the sense they call into question the trial judge's identification of the relevantlaw, including the judge's selection and

interpretation of the law, the power of the Court to act on its own view of the law is not fetteredin this or any other way. If, in the judgment of the Court, the trial judge's identification of the relevant law is not "correct" the Court is tosubstitute its own view of the law for that of the trial judge and act accordingly: Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2S.C.R. 235.

In general, this is also true of the application of the law to the facts as found, for this entails evaluating the facts against alegal standard, a matter that calls for a normative judgment and the drawing of conclusions in law based on the facts as found: St-Jean v.Mercier, 2002 SCC 15 , [2002] 1 S.C.R. 491; ABB Inc. v. Domtar Inc., 2007 SCC 50; Ellis-Don Ltd. v. Ontario (LabourRelations Board), 2001 SCC 4 , [2001] 1 S.C.R. 221; Farm Credit Corp. v. Valley Beef Producers Co-operative Ltd. (2002),2002 SKCA 100 , 223 Sask.

R. 236 (C.A.). 9 In appeals involving child protection issues the aforementioned standard of review is further limited in the manner outlined in NewBrunswick (Minister of Health and Community of Services) v. C.(G.C.), (SCC), [1988] 1 S.C.R. 1073 at p. 1077: Both the appellant and the intervener on behalf of the children took issue with those two statements as being contrary to the letter and thespirit of the Act.

They also stressed, and rightly so, that trial judges' decisions, particularly in matters of family law, should not beinterfered with lightly by appellate courts absent an error in principle, a failure to consider all relevant factors, a consideration of anirrelevant factor or a lack of factual support for the judgment (Adams v. McLeod, (SCC), [1978] 2 S.C.R. 621; Novic v.

Novic, (SCC), [1983] 1 S.C.R. 696, aff'd on reconsideration (SCC), [1983] 1 S.C.R. 700; Racine v.Woods, (SCC), [1983] 2 S.C.R. 173, and more recently Pelech v. Pelech, (SCC), [1987] 1 S.C.R. 801;Richardson v. Richardson, (SCC), [1987] 1 S.C.R. 857, and Caron v. Caron, (SCC), [1987] 1 S.C.R.892). [13] This Court has viewed orders made under s. 37 of the CFSA as discretionary orders which are accorded a high degree of deferenceas stated by Cameron J.A. in W.(C.) v.

Saskatchewan (Minister of Social Services) (1990), (SK CA), 25 R.F.L. (3d)308 at p. 309: The power afforded a judge by s. 29 of the Act [now s. 37] is essentially a discretionary power, and accordingly its exercise is not to beinterfered with on appeal in the absence of some material failure going to how the power was exercised. It follows that our function, atthe outset at least, is one of review, only, to determine if the trial judge in the exercise of his discretion erred in law, or disregarded oroverlooked some relevant matter, or failed to act judicially.

Unless something of that nature is present an appellate court cannot properlyintervene. [14] The issues in this case except one are all issues of law and attract the correctness standard. The ultimate issue of the permanentcommittal attracts the differential standard articulated by Cameron J.A. above. V. Issues [15] This appeal raises the following issues:

(1) Did the trial judge err by admitting into evidence the IEIS records pursuant to ss. 50-52 of The Evidence Act?

(2) Did the trial judge err by admitting into evidence the transcripts and court records of the sentencing of the parents pursuant to s. 30of the CFSA?

(3) Did the trial judge err by relying on case plan assessments and mobile crisis records tendered by the Ministry?

(4) Was the admission of the IEIS records and sentencing transcripts of the Appellants a breach of the parents’ rights pursuant to s. 7 ofthe Charter?

(5) Should this Court receive “further evidence on questions of fact” pursuant to s. 63(4)(

a) of the CFSA?

(6) Did the trial judge err in making a permanent order pursuant to s. 37(2) of the CFSA based on the trial proceedings? VI. Analysis

(1) Did the trial judge err by admitting into evidence the IEIS records pursuant to ss. 50-52 of The Evidence Act? [16] The germane sections of The Evidence Act with respect to this issue are as follows: 49 In this Division: “business” includes every kind of business, profession, occupation, calling, operation or undertaking , whether carried on for profit orotherwise or whether carried on by a person or entity in the private sector or in the public sector; . . . “record” includes any information that is recorded or stored by means of any device or electronic means. . . . 50(1) Any record made of any act, transaction, occurrence or event is admissible in any proceeding as evidence of the act, transaction,occurrence or event if: (

a) it was made in the usual and ordinary course of a business; and (

b) it was in the usual and ordinary course of the business to make the record at the time of the act, transaction, occurrence or event orwithin a reasonable time after the act, transaction, occurrence or event.

(2) The circumstances of the making of a record mentioned in subsection (1), including the time of making the record in relation to thetime of the act, transaction, occurrence or event and lack of personal knowledge by the maker, may be shown to affect its weight, butthose circumstances do not affect its admissibility. . . .

52(1) Subject to this section, a copy of an entry in a record kept by a business is admissible in any proceeding as proof, in the absence ofevidence to the contrary, of the entry, and of the acts, transactions, occurrences and events recorded in the entry.

(2) A copy of an entry in a record kept by a business shall not be received in evidence pursuant to this

section unless it is first provedthat: (

a) the record was, at the time of the making of the entry, one of the ordinary records of the business; (

b) the entry was made in the usual and ordinary course of business; (

c) the record is in the custody or control of the business or its successor; and (

d) the copy is a true copy. [17] The parents make a number of arguments respecting the inadmissibility of the IEIS records, which give rise to the following sub-issues: (

i) What is the proper approach to determine the admissibility of the IEIS record? (ii) Are “third party” statements admissible under ss. 50-52 of The Evidence Act? (ii) Whether ss. 50-52 of The Evidence Act requires all the informants to the record to be under a business duty to provide theinformation? (iv) Whether the IEIS records meet the statutory prerequisites for admissibility? (

v) Whether the trial judge erred by admitting the records thereby shifting the burden of proof from the Ministry to the parents?

Each of these sub-issues must be answered to determine whether the trial judge erred in admitting the IEIS records. 1.1 What is the proper approach to determine the admissibility of the IEIS record? [18] The parents contend these records contain otherwise inadmissible hearsay, speculation and opinion that is not credible andtrustworthy and does not meet a standard of threshold reliability. [19] As an initial matter, the parents argue s. 28(3) of the CFSA requires that business records, because they contain hearsay, must passthe test of whether they are credible and trustworthy before they are admitted as evidence.

This argument misinterprets s. 28(3). Section28(3) reads as follows: 28(3) The court may admit hearsay evidence if, in the opinion of the court, the evidence is credible and trustworthy and it would not bein the best interests of a child for the child to testify. This provision allows hearsay to be admitted respecting the out of court utterances or actions of the child, where it would not be in thechild’s best interest to testify.

It has no application to the admissibility of police records pursuant to The Evidence Act. [20] The parents next cite certain Ontario cases which they argue impose a threshold reliability test for business records. Thefountainhead of this threshold reliability phraseology as used in the Ontario child protection cases cited by the parents is CatholicChildren’s Aid Society of Toronto v. J.L. (2003), (ON CJ), 39 R.F.L. (5th) 54 (Ont. C.J.). In the J.L. case, theChildren’s Aid Society applied to admit certain documents under s. 50 of the Child and Family Services Act, R.S.O. 1990, c.

C.11 whichdid not comply with s. 35 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 (which is the equivalent to s. 50 of The Evidence Act). [21]

Section 50 of the Ontario CFSA is a rough equivalent of s. 30 of the CFSA and reads: 50.

(1) Despite anything in the Evidence Act, in any proceeding under this Part, (

a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for orhave access to a child who is the subject of the proceeding; and (

b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding orthe reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. [emphasis added] This

section both excludes the Ontario Evidence Act and allows discretionary admission of a broad range of documents into evidence.

[22] A review of the J.L. case, and Ontario cases subsequent to it, make it clear this “threshold reliability” phraseology is the Ontariocourts’ response to s. 50 of the Ontario CFSA, which casts a wide documentary net and purports to admit records that would not meet theexacting criteria of the Ontario Evidence Act. The Court in J.L. was not concerned with threshold reliability of evidence tendered unders. 35 of the Ontario Evidence Act at all but merely compliance with the statutory prerequisite.

The line of Ontario cases following J.L.and cited by the parents respecting threshold reliability of business records complying with the statutory exception, therefore has littleapplication to the IEIS records and to ss. 50-52 of The Evidence Act in this case. [23] However, the court in J.L. did follow the oft-quoted case of Setak Computer Services Corporation Ltd. v. Burroughs BusinessMachines Ltd. et al. (1977), (ON SC), 76 D.L.R. (3d) 641 (Ont.

H.C.) and the principles set forth therein in itsdetermination of the admissibility of documents proffered under the business records provision of the Ontario Evidence Act. The Setakcase has been applied in Saskatchewan in the child protection context. [24] In S.V. (Re), 2002 SKQB 499, 228 Sask.R. 161 the court dealt with investigation records, assessments and case plans, socialhistories and an application for exceptional funding, all proffered by the Ministry as admissible pursuant to s. 31 of the SaskatchewanEvidence Act (as it then was) or alternatively pursuant to the common law business records exception.

In that case, Ryan-Froslie J.determined that virtually none of the documents were admissible because they contained summaries or condensed versions of the act,transaction or occurrence or opinions they purported to record. In making that ruling respecting admissibility under the statutorybusiness records provision she relied on Setak Computer. At para. 30, Ryan-Froslie J. summarized the principles of Setak as follows: (

i) The evidence must be a writing or record produced by a business as that term is defined in the statutes.

At pages 647-648 of theSetak Computer Services Corp. decision, Justice Griffith made reference to the fact that the Ontario statutory provision was "...cast invery broad terms so as to encompass practically every type of writing utilized in connection with any business". (ii) The writing or record must be made in the usual and ordinary course of a business (See: page 649 of the Setak decision). (iii) It must be in the usual and ordinary course of the business to make such writing or record (See: pages 649-650 of the Setakdecision). (iv) The writing or record must be made at the time of or within a reasonable time after the act, transaction, occurrence or event it isintroduced as evidence of (See: page 651 of the Setak decision). (

v) Business records are not proof of the validity of any opinion expressed therein (See: page 652 of the Setak decision where JusticeGriffith quoted with approval the case of Adderly v. Bremner, (ON SC), [1968] 1 O.R. 621 (Ont. H.C.), which statedthat opinions would not be accepted as evidence unless given by a duly qualified expert). (vi) Lack of personal knowledge does not affect the admissibility of the writing or record (See: page 652 of the Setak decision). To these principles Ryan-Froslie J. added an additional principle: 31 . . . The writing or record must be of

an act, transaction occurrence or event; [i.e. a positive happening which is routinelyrecorded.] [25] These principles will normally guide the determination of whether records are admissible pursuant to ss. 50-52 of The Evidence Act. 1.2 Are “third party” statements admissible under ss. 50-52 of The Evidence Act? [26] In Setak, Griffiths J. at pp. 762-763 stated third party statements are not admissible pursuant to the Ontario equivalent of ss. 50 to 52of The Evidence Act.

In my view, there is some basis for questioning whether third party statements are necessarily excluded, given theclear wording of s. 50(2) of The Evidence Act. [27] When dealing with s. 30 of the Canada Evidence Act, R.S.C., 1985, c. C-5, the analog to s. 50 of The Evidence Act, this Court hasaccepted the proposition that double hearsay is admissible even without a provision similar to s. 50(2) of The Evidence Act. In R. v.Martin, (SK CA), [1997] 6 W.W.R. 62 (Sask. C.A.) the Court addressed the admissibility of Statistics Canada cropproduction and yield tables pursuant to s. 30 of the Canada Evidence Act.

Jackson J.A., after reviewing the cases on point and holdingdouble hearsay does not preclude admissibility, states at paras. 37, 48 and 50: 37 Many of the provincial equivalents of s. 30(1) specifically require a court to overlook double hearsay. For example, s. 31(3) ofThe Saskatchewan Evidence Act, R.S.S. 1978, c. S-16 provides "[t]he circumstances of the making of a writing or record mentioned insubsection (2), including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not

affect its admissibility." The difference between the provincial and federal legislation appears to lessen the effectiveness of the latter. . . . 48 The opening words of s. 30(6) appear to permit a consideration of weight to be made when the court considers admissibility. But ifthis means a court must reject a record because it contains double hearsay, it places documents prepared in the ordinary course ofbusiness in a fundamentally different category than documents admitted pursuant to the common law business duty exception.

Asindicated in Ares, weight is an issue to be addressed after the document is accepted as evidence. The circumstances in which theinformation was gathered or the record produced, or the lack of such evidence, may affect the weight to be given to it by the trier of fact,but it does not affect its admissibility. . . . 50

Section 30 would have accomplished little if the author of the data contained in a business record had to be called to testify. Thecomplexity of modern business demands that most records will be composed of information gleaned by the maker from others. See also R. v. Lukacko (2002), (ON CA), 164 C.C.C. (3d) 550 (Ont. C.A.); R. v. Gregoire (1999), (MB CA), 130 C.C.C. (3d) 65 (Man.

C.A.). [28] There is, therefore, no valid reason why ss. 50-52 of The Evidence Act based on the case law should be interpreted morerestrictively respecting hearsay than the similar business records exception under the Canada Evidence Act. [29] The approach the courts have taken to s. 30 of the Canada Evidence Act is not inconsistent with the notion that the law seekscircumstantial guarantees of trustworthiness and reliability before evidence is admissible. Business records are considered inherentlyreliable because they are created in a context where they are systematically stored, produced and relied on.

They are made incircumstances of regularity and continuity which produce habits of precision. Therefore, provided the record complies with the statutoryprerequisites, it is sufficiently credible and trustworthy to be admissible and it matters little whether the record contains double or triplehearsay. This is so especially in the light of a specific provision like s. 50(2) of The Evidence Act.

This subsection signals that theresolution of the issue of what to make of “hearsay” in the record, whether double or third party variety, is left to weight and thediscretion of the judge and not admissibility. 1.3 Whether ss. 50-52 of The Evidence Act requires all the informants to the record be under a business duty to provide the information? [30] The parents argue the IEIS records contain information provided by third parties not under a business duty to do so and therefore donot qualify as business records.

The court in J.L., as part of its determination of which police records were admissible as business recordsunder s. 35 of the Ontario Evidence Act, excluded the records containing comments made by third parties who were neither the parentsnor police officers. [31] There are many examples where a person is entitled to provide information to a public or private organization but not under abusiness duty to do so and that information is duly recorded as part of the business duty of the organization. The police service is anexample of this.

The information of these third parties is relied on by the police in the context of their duties and often acted on. Thebusiness record created by the police based on the information of those third parties is no more than a recording of the fact those thirdparties provided certain information to the police. It is evidence of that reporting to the police. Admittedly that information may or maynot be ultimately accurate or truthful. Although the truth of such a report is not guaranteed at the admissibility stage, a necessaryguarantee of truth, as Griffith J. suggests in Setak, is not required.

All that is required is that there is sufficient reliability for admission. [32] Given the clear terms of s. 50(2) of The Evidence Act there is no valid reason why the IEIS records in this case should beinadmissible merely because an informant is not under a business duty to provide the information. Weight, however, is another matter.

It was open to the trial judge to admit the records but to give little or no weight to hearsay found in the admissible record as he did in thiscase. [33] That said, the court still has a discretion to admit even those portions of the record which are inadmissible as business records, forthe limited purpose of narrative or background as Wilkinson J. did in C.(V.J.), Re., 2009 SKQB 395 (see paras. 10 and 13).

In that case,the parents’ counsel argued that the Ministry’s records regarding the family’s lengthy case history, summaries prepared by case workerswho were unavailable for cross-examination or third party reports were inadmissible under s. 50 of The Evidence Act because theycontained hearsay and opinion evidence. Wilkinson J. did not determine that issue but admitted the documents, not for the truth of theircontents, but for the purpose of explaining the actions of Ministry witnesses who indicated that they reviewed the documents and actedon them.

[ 34 ] None of the foregoing prevents a court from admitting business records under another exception to the hearsay rule or editing a record to delete parts which do not meet the requirements of ss. 50 - 52 of The Evidence Act . 1.4 Whether the IEIS records meet the statutory prerequisites for admissibility? [ 35 ] The parents also argue the IEIS records did not meet the statutory prerequisites for admissibility as amplified by the principles set forth in Setak pursuant to ss. 50 - 52 of The Evidence Act . [ 36 ] The statutory definition of “business” includes an operation or undertaking in the public sector and is broad enough to encompass the Regina Police Service which is such an entity.

Likewise, the definition of “record” is broad enough to encompass IEIS records generated by the Regina Police Service and stored in its computer system. [ 37 ] The IEIS records which were tendered as Exhibits M-85 and M-86 reflect police involvement concerning the parents from early 2006 to late 2007. Counsel for the parents conceded that police members were under a duty to create the reports. Sgt.

Wyatt’s testimony established it was in the ordinary course of business of the police to make such records. [ 38 ] The parents’ argument that the IEIS records were not made contemporaneously with the occurrence they purport to record must fail as well. The testimony of Sgt. Wyatt makes it clear that the entries were nevertheless made within a reasonable time after the occurrence and that is sufficient. [ 39 ] The parents point to inherent frailties in the IEIS records. The records are organized in standardized categories and formats of acts, transactions and occurrences reflecting criminal investigations.

The fact there is a standardized method of creating the record enhances the records’ reliability. It may be that the record, to a greater or lesser extent, lacks full context or put another way does not have the context which may be helpful in a child protection case. But that is neither here nor there concerning admissibility.

By their nature the record tends to contain what is relevant from the police point of view. [ 40 ] As well, the entries which include the opinion of police officers as to the observable physical, emotional or mental state of the parents with whom they are dealing in the course of the investigation are admissible. It is part of their duty to record these aspects of their dealings with the parents and others. [ 41 ] All of these inherent frailties and features of the IEIS records do not make them any less a record of the act, transaction, occurrence or event.

The frailties may go to weight or ultimate reliability but do not exclude the records as a business record. [ 42 ] The trial judge was at the outset, therefore, correct to conditionally admit copies of the IEIS records as exhibits on the basis that the statutory prerequisites of The Evidence Act had been met. 1.5 Whether the trial judge erred by admitting the records thereby “shifting the burden of proof” from the Ministry to the parents? [ 43 ] The parents argue the admission of the IEIS records under The Evidence Act generally, and the requirement to call evidence to the contrary in s. 52(2) specifically, shifts the onus from the Ministry to demonstrate the children are in need of protection to the parents to disprove allegations based on hearsay and opinion. [ 44 ] The use of the business records exception whether documents are tendered under s. 50 or s. 52 is an entirely appropriate tool to prove certain relevant facts.

There was nothing inherently unfair in this process. It does not relieve the Ministry of its ultimate burden. In this case, the evidentiary onus was on the Ministry to justify the admission of the records under The Evidence Act . They did this by tendering the documents and calling Sgt. Wyatt who testified about the creation of the records. Then the evidentiary onus shifted to the parents to adduce any evidence addressing the records if they thought it necessary or advisable. In this case the parents had the opportunity to challenge the content of the records as would any party.

The police officers who would have some personal knowledge of the events were made available to testify. Cross-examination of them might have assisted in determining the weight to be given to the records. The parents might also have testified as to their own recollection of the events portrayed in the records or called other witnesses who could shed light on these events. The parents did not avail themselves of these opportunities.

[ 45 ] With respect to “evidence to the contrary”, the trial judge in ruling on the admissibility of the records, in the transcript at p. 313 of the supplementary appeal book states: So one ought not to read Section 52(1) as an automatic proof of the truth of the contents of those records, they may be disproven by evidence to the contrary, if the respondents so care to lead.

And even if the respondents do not choose to introduce evidence to the contrary, it remains within the purview and discretion of the judge to determine whether the facts are proven to the judge’s satisfaction and have probative value for the purpose of this hearing. [ 46 ] As an initial observation, it is important to remember the words “in the absence of evidence to the contrary” in s. 52(1) of The Evidence Act are directed to the admissibility of a copy of the record rather than the original record. The phrase “evidence to the contrary” has nothing to do with s. 50 . Notably s. 50(1) has no similar wording.

This is because if the original is tendered it is manifestly the record . Section 52(1) merely states that a copy is evidence of … etc. and admissible just as the original would be unless there is evidence to the contrary . Such evidence could be, for example, that the copy is not an accurate reproduction of the original or it is incomplete or it is misrepresentative of the original.

The phrase “evidence to the contrary” is, therefore, not a statutory invitation or requirement to tender evidence respecting the threshold reliability of documents, question their truth or to disprove their contents at the admissibility stage. It does not shift the ultimate onus from the Ministry to the parents. [ 47 ] While the trial judge could have chosen different language to convey the meaning of s. 52(1) , it is clear from a reading of the whole of the transcript that he did not treat the business records exception inappropriately. 1.6 Conclusion regarding admissibility of the IEIS Records.

Based on the conclusions to the sub-issues previously discussed, I can find no error in the trial judge admitting the IEIS records as he did. 2. Did the trial judge err by admitting into evidence the transcripts and court records of the sentencing of the parents pursuant to s. 30 of the CFSA ? [ 48 ] The parents question the reliability of these records.

They argue that there was no evidence the facts agreed to in Provincial Court proceedings were accepted as fact by them and that the best evidence rule required the Ministry to produce witnesses to attest to the individual events giving rise to the conviction to prove the underlying facts. Moreover, the parents argue hearsay in the form of police officer and third party informant statements was included in the transcripts and there was no opportunity for cross-examination. These arguments cannot prevail. [ 49 ]

Section 30 of the CFSA reads as follows: 30 At a protection hearing, the court may admit any evidence taken at a previous civil or criminal proceeding. [ 50 ] The threshold consideration for admissibility of evidence of prior proceedings under s. 30 is relevance. To the extent that prior proceedings evidence can be used to establish any one or more of the factors set out in s. 11 of the CFSA , the evidence ought to be relevant.

In this respect I agree with the observations of Wilkinson J. referred to by the trial judge at para. 49 of the trial decision: … Wilkinson J. adopts the reasoning that s. 30 , "allows the court to take into consideration any evidence taken on any previous proceeding if the evidence is informative in any way as to the psychical, psychological, social or physical development of the child or parent, and is relevant to any matter under consideration by the court." [emphasis in original] This is, as observed by the trial judge, subject to the proviso that the salutary effect of admitting the evidence must outweigh the possible prejudice to the parents.

The transcripts in this case are ultimately relevant because they speak to the parents’ past parenting ability even though that evidence may now be somewhat stale-dated. [ 51 ] Unlike s. 50 of The Evidence Act , there are no statutory prerequisites or processes which circumscribe admission.

Section 30 , because it is restricted to “civil and criminal proceedings”, is narrower than s. 50 of the Ontario Child and Family Services Act discussed earlier.

[52] In the absence of statutory prerequisites for admissibility, the discretion to admit hearsay generally and the records under s. 30specifically, should be exercised using the holistic approach respecting the indicia of reliability and necessity set out by Charron J. atparas. 42 and 49 of R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787: 42 … Wigmore urged greater flexibility in the application of the rule based on the two guiding principles that underlie the traditionalcommon law exceptions: necessity and reliability (Wigmore on Evidence (2nd ed. 1923), vol. III, s. 1420, at p. 153).

This Court firstaccepted this approach in Khan [ (SCC), [1990] 2 S.C.R. 531] and later recognized its primacy in Starr [2000 SCC 40] … . . . 49 The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. Thecriterion of necessity is founded on society's interest in getting at the truth.

Because it is not always possible to meet the optimal test ofcontemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justiceto consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of thetrial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from thedifficulty of testing it.

As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither ofwhich excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of thehearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process.In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other thancontemporaneous cross-examination.

In these circumstances, the admission of the evidence will rarely undermine trial fairness.However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria aremet, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect. [Emphasis added] [53] This approach has more recently been referred to in R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208 where the court at para.138 states: Khelawon advocates a holistic approach to the question of threshold reliability.

In some instances, the threshold test for reliabilitywill be met by simply looking at the circumstances under which the statement came about. In others, circumstances external to themaking of the statement will allow for sufficient testing of the truth and accuracy of the statement. … [54] Seen through this holistic lense, the transcripts are admissible. There is much about the circumstances of the creation of thetranscripts and court records (Exhibits M-26 to M-29) which renders them reliable. Each of the sentencing transcripts was tendered withthe appropriate certification as to their authenticity.

Section 31(3) of The Evidence Act makes a transcript prepared in accordance withthat

section proof in the absence of evidence to the contrary that it is a record of the evidence or a portion of the evidence in theproceedings. The transcript is evidence of the official record of that court. The court relied on the evidence at the time it was before thatcourt. Each transcript is accompanied by the relevant Criminal Code forms and written record of proceedings relating to eachconviction. [55] The transcripts consist in part of the underlying facts, hearsay or otherwise, recited by the Crown, which would sustain the guiltyplea and the entry of a conviction at that time.

If an accused disagrees with the facts at a sentencing hearing, it is open to the accused torequest that evidence be called and to dispute the facts. In the transcripts of the proceedings tendered in this case, there was no suchrequest or dispute. As such, the parents are taken to have generally admitted the truth and the underlying facts which were recited tosustain their guilty plea. Even at common law these would be admissions against interest. This also obviates the need to cross-examinethe individuals whose statements or observations form the content of the facts recited.

The mere fact cross-examination is not availabledoes not render the transcripts inadmissible. As pointed out in Khelawon, cross-examination is not always required where as a whole theevidence is reliable. Indeed in Khelawon the court at para. 90 noted that testimony at a preliminary inquiry satisfied the thresholdreliability requirement. Absent proof the transcripts are not accurate or their contents have been seriously impugned, there is no reason tosecond-guess the authenticity or accuracy of these records and their reliability in this respect. [56] Necessity is established as well.

My comments earlier respecting the general pragmatic rationale for not calling the witnessesrespecting business records applies here as well. I cannot agree the best evidence rule requires the Ministry to produce witnesses toattest to individual events or facts recited in the transcripts. The purpose of s. 30 is to expedite the trial. To require the Ministry to callwitnesses to prove every fact as contained in the transcript in this case would negate the purpose of s. 30.

It would promote continuousre-litigation of the factual foundation of past events which form but one part of a myriad of factual considerations for the trial judge andsubstantially lengthen the trial. It would accomplish little to call the witnesses underlying the facts especially where those facts are takento have been admitted.

That being said, a court might be more circumspect where the transcript consists of the testimony of a third partyon a crucial issue who might just as easily have been called to testify in the trial. [57] There is no indication the admission of the transcripts in this case, despite their meeting the requirements of reliability andnecessity, would otherwise be prejudicial to the parents. Whether a piece of evidence is prejudicial has to do with the fairness of the trialand the improper use of the evidence rather than whether it prejudices a party’s chances on the final issue.

A trial judge is not requiredto take the same view of the facts and evidence in the transcripts as is taken by the court at that time, and is entitled to weigh the

evidence as he or she sees fit including any hearsay contained in the transcripts. I agree with the trial judge that the salutary effect ofadmitting these transcripts along with the remaining record of proceedings outweighs the prejudice to the parents. [58] The ability to admit evidence of prior proceedings does not mean all evidence of prior proceedings is admissible.

Whether the courtshould exercise its discretion to admit evidence under s. 30 will be driven by the circumstances and issues of the case, relevance, thenature of the evidence, and the issue of probative value versus prejudice and the best interests of the child. These criteria were obviouslyconsidered by the trial judge. I can see no error in the trial judge admitting this evidence. 3.

Did the trial judge err by relying on case plan assessments and mobile crisis records tendered by the Ministry? [59] The trial judge reserved the question of the admissibility of exhibits M-64 to M-79 which are the plan assessments and mobilecrisis records tendered by the Ministry. They were not made full exhibits at trial and he made no subsequent ruling respecting this issue.

The parents argue that although the trial judge reserved his decision as to the admissibility of case plan assessments and mobile crisisrecords tendered by the Ministry, he erred by failing to render a decision on this point leaving the parents to assume that evidence, muchof which the parents allege contained inadmissible hearsay, was before him and potentially considered in his decision.

This argumentcannot prevail. [60] The trial judge substantially relied on the direct testimony of caseworkers and previous orders and agreements, expert testimonyand the case put forward by the parents and made no mention of these exhibits in his decision. In light of this, it may be inferred that itwas not necessary to determine the admissibility of these documents. 4.

Was the admission of the IEIS records and sentencing transcripts of the Appellants a breach of the parents’ rights pursuantto s. 7 of the Charter? [61] The parents argue they have not been accorded procedural and substantive fairness under s. 7 of the Charter for the same reasonsadvanced by them in their arguments relating to ss. 50-52 of The Evidence Act and s. 30 of the CFSA. [62] After giving due consideration to the parties’ submissions, there is no reason to depart from the court’s longstanding practice of notconsidering Charter arguments first raised on appeal. R. v. Kaysaywaysemat (1992), (SK CA), 97 Sask.

R. 66 (C.A.)at 68. This ground of appeal fails. 5. Should this Court receive “further evidence on questions of fact” pursuant to s. 63(4)(

a) of the CFSA? 6. Did the trial judge err in making a permanent order pursuant to s. 37(2) of the CFSA based on the trial proceedings? [63] These two issues may be conveniently dealt with together because the further evidence sought to be admitted bears on the issues ofwhether the parents have a reasonable prospect of change and the best interests of the children. [64] Both the parents and the Ministry seek to adduce further evidence under s. 63(4)(

a) of the CFSA. The further evidence refers toevents after trial and spans a period of approximately three years. [65] The CFSA allows this Court to receive further evidence under s. 63(4) which reads as follows: 63(4) A judge sitting in appeal may: (

a) receive further evidence on questions of fact; (

b) confirm the order appealed against; (

c) rescind the order appealed against and substitute any order that the originating court could have made;

(

d) refer the matter, with instructions, to the originating court for re-hearing of all or part of the evidence. [66] The Supreme Court has provided clear guidance on the proper test for admission of further evidence in this kind of case in CatholicChildren’s Aid Society of Metropolitan Toronto v. C.M., (SCC), [1994] 2 S.C.R. 165, a case concerning s. 69(6) of theOntario CFSA, a provision similar to s. 63(4) of the CFSA. L’Heureux-Dubé J. agreed with the decision of the Ontario Court of Appealin Genereux v.

Catholic Children’s Aid Society of Metropolitan Toronto (1985), (ON CA), 53 O.R. (2d) 163 (Ont.C.A.) in which Cory J.A. (as he then was) stated (at pp. 164-65): It can be seen that the judge hearing the appeal is granted a very wide discretion with no restrictions imposed. This is remediallegislation dealing with the welfare of children. It should be broadly interpreted. Undue restrictions should not be placed upon it.Specifically, narrow restrictions should not be read into the

section when they do not appear in the legislation. The judge on appeal, bearing in mind that he is dealing with the welfare of children, may determine that he will exercise hisdiscretion and will hear further evidence so long as it is relevant to a consideration of the best interests of the child.

The decision will bebased upon the circumstances of the particular case. (emphasis added by L’Heureux-Dubé J.) After quoting the portions of the passage underlined above, L’Heureux-Dubé J. stated (at p. 188-89): Although I doubt that Genereux, supra, intended to depart significantly from the test of Palmer and Stolar, supra, its approach isto be commended.

In my view, Genereux, supra, is not only consistent with the jurisprudence of this Court but is better suited to thechild-centred focus of the CFSA, as it recognizes the importance of having accurate and up-to-date information on children whose fateoften hangs on the determination by judges of their best interests. In light of this Court's broad discretion to admit fresh evidence and thewording and the spirit of the statute, Genereux, supra, is very attuned to the philosophy and objectives of the Act.

Although it might bemore in line with usual procedures for a court of appeal to base its conclusions on the evidence before the trial judge, the particularnature of appeals in child welfare legislation requires a sufficiently flexible rule, where an accurate assessment of the present situation ofthe parties and the children, in particular, is of crucial importance.

If Genereux, supra, has enlarged the scope of the admission of freshevidence on appeal, it has done so, in the present case at least, with regard to the final arm of the Stolar test, that is, whether the freshevidence may affect the result of the appeal when considered with the other evidence. If that is so, and the fact that the admission of up-to-date evidence is essential in cases such as the one at hand, Genereux, supra, should be applied in cases determining the welfare ofchildren. [emphasis added] She continued, apparently rephrasing the test in R. v.

Palmer, (SCC), [1980] 1 S.C.R. 759 thusly (at p. 190): After reviewing the new evidence sought to be introduced before us, there is no doubt that it meets the test for admission. Inparticular, it could not have been adduced before, is highly relevant in that it enables the Court to make determinations on an accuratepicture of the situation at hand, is potentially decisive as to S.M.'s best interests and is credible. In addition, the evidence isuncontroverted and bridges the gap between the evidence submitted before the Court of Appeal in May 1993 and the present situation.

Inlight of the Court's broad discretion to admit fresh evidence and the legislated objective of the CFSA requiring the court to act in the bestinterests of the child in child welfare proceedings, the respondent society's motion to adduce fresh evidence must be allowed and theevidence admitted. [Emphasis added] [67] The C.M. case has been applied in a number of Ontario appellate cases. In Children’s Aid Society of the Region of Peel v.

W.(M.J.)(1995), (ON CA), 23 O.R. (3d) 174 (C.A.) where Osborne J.A. stated at pp. 193-94: In C.F.S.A. cases, consistent with Genereux and M. (C.), it seems to me that more flexible standards for the admission of furtherevidence must be accepted. In some cases the further evidence will amount to little more than a status report concerning the child'scircumstances as of a time close to the time when the appeal is argued.

I do not think that in family law cases, particularly thoseinvolving children, the further evidence has to meet the Varette test, or the requirements for the admission of further evidence in criminalcases: see R. v. Stolar, (SCC), [1988] 1 S.C.R. 480, 52 Man. R. (2d) 46; R. v. Palmer, (SCC), [1980] 1S.C.R. 759, 106 D.L.R. (3d) 212. That being the case, I do not think that further evidence, if admitted, should inexorably lead to a newtrial, or the reversal of the trial judgment.

In cases involving children, the fresh evidence, if admitted, must be reviewed with the otherevidence in determining what the appropriate disposition of the appeal should be. I do not wish to be taken to have concluded that in cases involving children, further evidence will always be admissible. In mostcases, it will not be necessary. This is an exceptional case as a result of the introduction of an issue (the B.C. placement proposal) whichwas not developed at trial, in my view, for sound reasons. In D.(R.) v. Children’s Aid Society of Owen Sound (2003), (ON CA), 44 R.F.L. (5th) 43 (Ont.

C.A.) the court at para.21 determined that a flexible approach to admissibility of further evidence is desirable and is grounded in the best interests of the child: [21] Given the inevitable fluidity in a child's development, in most cases it would be beneficial for a reviewing court to have the mostcurrent information possible to assist in evaluating whether a change in the factual matrix of a previous best interests determinationwarrants interference with that finding. Indeed, that is the purpose of s. 69(6) of the Act. In my view, the threshold of "potentialdecisiveness" has been met in these circumstances.

The fact of the father's separation from the child's mother is highly relevant andworthy of consideration by the court in assessing the child's best interest.

In D.R. the court, borrowing language from C.M. at para. 33, found the evidence was potentially decisive, but importantly determinedthe evidence would not change the result in the circumstances, thus underscoring the difference between the “potentially decisive”threshold for admission of the evidence and the ultimate decisiveness of the evidence. [68] The C.M. case was applied by the Alberta Court of Appeal in D.F.R. v.

Alberta (Director of Child Welfare), 2005 ABCA 344, 260D.L.R. (4th) 322 at para. 10: [10] The Director applied before this Court to adduce fresh evidence and, in reply, the Mother also tendered additional evidence. Weare satisfied that the new evidence meets the fresh evidence test, which is to be applied flexibly in child welfare cases: CatholicChildren's Aid Society of Metropolitan Toronto v. C.M., (SCC), [1994] 2 S.C.R. 165 at para. 20. [69] This Court has released two decisions which reflect the flexible approach to admission of further evidence enunciated in C.M. SeeRedshaw v.

Redshaw (1985), (SK CA), 41 Sask.R. 141 (Sask. C.A.) and J.L.L. (Re), 2002 SKCA 78, 27 R.F.L. (5th)337. [70] Given the foregoing, C.M. is the controlling authority in Saskatchewan on CFSA matters respecting the threshold for admissibilityof further evidence. [71] The test in C.M. may be summarized as follows: Further evidence adduced pursuant to s. 63(4) of the CFSA may be admitted if: (

a) The evidence could not have been adduced before; (

b) The evidence is highly relevant in that it enables the court to make a determination on an accurate picture of the situation at hand; (

c) The evidence is potentially decisive as to the child's best interest; and (

d) The evidence is credible. The overarching principle, however, is that a court has all the necessary authority to receive further evidence in the best interests of thechild. [72] An incidental consideration in this case is the interplay of Rule 59 of The Court of Appeal Rules respecting fresh evidenceapplications and s. 63(4)(

a) of the CFSA. Although some of the criteria of Rule 59 as set forth in case law are the same as in the C.M.test, the statutory power to consider further evidence on appeal pursuant to the CFSA is arguably not limited by any strictures of Rule 59. [73] In this case, the parents seek to adduce evidence of events occurring after the trial. Their affidavits indicate they have been livingtogether in a 1,000 square foot home since 2009. They state they have both maintained sobriety and have taken some programmingrespecting domestic violence, anger and addictions. Ms. L. has gone back to SIAST to obtain her grade 12.

Mr. L. has been employed atvarious jobs since his release from jail for an alcohol-related driving offence shortly after the trial. The parents’ home is close to schoolsand parks. They have made inquiries with community and medical centres regarding the needs of a Fetal Alcohol Syndrome child. Bothparents have attended a marriage counselor. Both parents have had contact with the children. [74] The Ministry’s application for further evidence is in response to the parents’ applications and updates events dealing with thechildren and the parents from the Ministry’s point of view.

It also provides information respecting police involvement with the parentssince the trial, including a conviction of Mr. L. for assault on his daughter Jasmine in 2008 for which he was incarcerated. [75] The Ministry’s evidence indicates that the children still have special needs and their status has not changed much since the trial. The Ministry, through the affidavit of Bree Lozinsky, tenders an assessment report of Laurel Phillips, an M.A. Registered Psychologistwho gives her opinion about the children’s bonding and attachment to Colleen W., the foster mother.

The parents were not involved inthis assessment. [76] The parents in reply to the Ministry’s evidence tender video evidence of their visits with the children and demonstrate that theyhave a good relationship with the children.

[77] On the basis of the criteria in C.M., the further evidence of the parents is admitted. The evidence could not be adduced beforebecause it pertains to events after the trial. It is relevant in that it enables the court to make a determination on an accurate picture of thesituation at hand. The evidence is relevant in that it is potentially decisive as to the children’s best interests. [78] A portion of the evidence of the Ministry is also admitted based on the principles in C.M. This includes the affidavit of DarleneWalliser and Colleen W. dealing with an update on the children.

A second affidavit of Darlene Walliser dated May 26, 2011 consists ofinformation about the parents’ involvement with the police. It references information in police reports and IEIS records and alsoattaches Provincial Court Informations and endorsements. This affidavit is not admitted. All of it is hearsay to start with. As well, Ms.Walliser is not part of the organization that created the record and therefore cannot speak with any authority about it. It is a writtensummary of a verbal recounting of business records.

None of the prerequisites to admissibility set forth in The Evidence Act aredisclosed in the affidavit. [79] The affidavit of Bree Lozinsky dated September 16, 2011 is admitted except for paras. 16 and 17 and related exhibits.

The expertopinion evidence as disclosed in paras. 16 and 17 respecting attachment issues, the possible effects of a rupture in the relationship of thechildren and Colleen W. could have been brought forward at the trial. [80] Such expert opinions may have their place at a hearing if the matter is referred back to the trial judge after appeal but are generallyinappropriate on appeal because it would be difficult for parents to challenge this type of evidence in the appeal context.

The affidavit ofBree Lozinsky dated September 26 is not admitted because it relates to the expert opinion. [81] To the foregoing extent, the further evidence of the parties is admitted on appeal. However, as stated in Children’s Aid Society ofthe Region of Peel v. W.(M.J.), supra, further evidence, if admitted, should not inexorably lead to a new trial or the reversal of the trialjudgment. The further evidence, if admitted, must be reviewed with the other evidence in determining the appropriate decision to bemade. [82] Section 63(4)(

d) of the CFSA gives this Court a number of options. The task at hand is to determine whether the further evidencetaken together with the trial proceedings and examined in the context of the best interests of the child, justifies (

i) rescinding the orderappealed against and substituting any other order that the trial court could have made, (ii) returning the matter to the originating court fora re-hearing, in whole or in part, in which case the trial judge must determine if the further evidence as augmented by further hearingjustifies another order and dismissal of the appeal, or (iii) confirming the order appealed against and dismissing the appeal. [83] In determining the appropriate order to be made in the circumstances of this case, the parents conceded that the children were inneed of protection.

The only real issue was whether the parents had a reasonable prospect of change within a reasonable period of time. [84] The further evidence of the parents while demonstrating some rehabilitation since the trial has not dispelled concerns about theircapacity to care for the children and their acquisition of the special skills necessary to parent children with special needs such as E. andJ.. The trial judge acknowledged the parents may rehabilitate themselves but concluded that the stress and responsibility of caring for E.may compromise that.

He based his determination that a supervised placement of the children with the parents under s. 37(1)(

a) of theAct was not in the children’s best interest on his salient finding of fact that the parents were not reasonably suited to the task of caring forand nurturing high needs children and did not have the support network to meet their needs. The parents’ further evidence does notaddress this fact sufficiently to overcome any concerns the court might have. [85] As the trial judge put it, “E. and J. cannot be put at risk to test the father and mother’s emerging parenting skills”.

Despite theirclear progress in moving their lives in a positive direction the focus must still be on the children and their best interests. The furtherevidence sought to be admitted shows that the parents are still a substantial distance away from having the parenting skills and resourceswhich special needs children such as E. and J. not only require but are entitled to have if they are available. [86] With respect to the appropriate order, the trial judge properly adopted the test set out in the Saskatchewan (Minister of SocialServices) v. E.K.S., D.W. and C.S. (1996), (SK KB), 146 Sask. R. 46.

He focused on the appropriate factors andconsidered the dispositions available to the court and concluded it was not in either child’s best interest to make an order for supervisedplacement or a temporary order. [87] There was no indication the trial judge failed to appropriately consider the interplay between ss. 3 and 4 of the Act and that theparents’ interest was linked to those children. It was open to him to find as he did, that there was insufficient evidence to support the

parents’ assertion they had turned over a new leaf, and would in a reasonable period of time be on the road to recovery and that there was a reasonable prospect of change in accordance with E.K.S. [ 88 ] I can find no error by the trial judge in determining the appropriate order in light of the children’s needs and the abilities of the parents. He did not err in making a permanent order pursuant to s. 37(2) of the Act on the evidence before him. Applying the standard of review articulated in W.(C.) v.

Sask. (Min. of Social Services) , supra , and having regard for the whole of the evidence taken together with the further evidence, there is no basis to intervene. VII. Conclusion [ 89 ] The order under s. 37(2) respecting E. and J. is confirmed. The parents’ appeal is dismissed. VIII. Costs [ 90 ] This appeal has taken some time to be heard, initially because the parents could not afford the cost of the transcript. The parties then agreed to proceed without the transcript. The Ministry then determined it required the transcript to proceed and paid for its production.

Counsel for the parents suggests that the delay and extra work occasioned should sound in costs to the parents. Given the outcome of this case, no costs will be awarded to either side. However, the dilemma initially faced by the parents remains a live issue insofar as it affects the timely prosecution of CFSA appeals by parents who find it difficult to pay for the transcript. DATED at the City of Regina, in the Province of Saskatchewan, this 27 th day of March, A.D. 2011. “Ottenbreit J.A.” ______________________ Ottenbreit J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Herauf J.A.” Herauf J.A.