Mi
kmaw Family v. Children Services of Nova Scotia, 2013 NSSC 310

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Mi
kmaw Family and Children Services v. HF, 2013 NSSC 310 Date: 20131003 Docket: SFSNCFSA - 085694 Registry: Sydney Between: Mi
kmaw Family and Children Services of Nova Scotia Applicant v. HF, EP, and PY Respondents LIBRARY HEADING Judge: The Honourable Justice Theresa M.

Forgeron Heard: June 26 and 27; July 30; August 1, September 5, 6, and17, 2013, in Sydney, Nova Scotia Oral Decision: October 3, 2013 Written Decision: October 10, 2013 Subject: Child Protection Issue: Child Hearsay Statements Physical Abuse Result: The agency proved that child hearsay statements were reliable. Indicia of reliability reviewed in context of child protection proceeding. Expert evidence not required to prove that scars on child
s leg are the result of cigarette burns. Finding under s. 22(2)(

a) of CFSA granted. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA

(FAMILY DIVISION) Citation: Mi’kmaw Family and Children Services v. HF, 2013 NSSC 310 Date: 20131003 Docket: SFSNCFSA - 085694 Registry: Sydney Between: Mi ’ kmaw Family and Children Services of Nova Scotia Applicant v. HF, EP, and PY Respondents Judge: The Honourable Justice Theresa M.

Forgeron Heard: June 26 and 27; July 30; August 1, September 5, 6, and17, 2013, in Sydney, Nova Scotia Oral Decision: October 3, 2013 Written Decision: October 10, 2013 Counsel: David MacIsaac, LeeAnne MacLeod-Archer, and Stephanie Myles, Counsel for Mi’kmaw Family and Children Services Jennie Donnelly-McDonald, Counsel for HF Jennifer Nolan, Counsel for EP Peter Forgeron, Counsel for PY Editorial Notice Identifying information has been removed from this electronic version of the judgment.

Restriction on publication: Section 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides : 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 pursuant to this Act , or a parent or guardian, a foster parent or a relative of the child.

By the Court: [ 1 ] Introduction [ 2 ] Did EP burn his step son, De with a cigarette? The answer to this question led to a protracted protection proceeding spanning several days during the months of June, July, August and September, 2013. [ 3 ] The Agency, Mi ’ kmaw Family and Children ’ s Service of Nova Scotia, seeks a protection finding pursuant to s. 22(2)(

a) of the Children and Family Services Act because they say that the evidence proves that EP burned De with a cigarette. In contrast, EP vehemently disputes the allegation and finding.

De ’ s parents, HF and PY, advanced no position on the issue. [ 4 ] Issues [ 5 ] The issues to be decided in this decision are as follows: ∙ What principles apply to this protection proceeding? ∙ Did EP burn De with a cigarette causing De to suffer physical harm? [ 6 ] Background Information [ 7 ] Before analysing these issues, contextual information will be canvassed. [ 8 ] The respondents have two children who are involved in these protection proceedings. Five year old De is the son of HF and PY.

Three year old An is the son of HF and EP. [ 9 ] The agency ’ s first contact with this family began over four years ago, in May, 2009. Since that time, substantiated referrals related to substance abuse and domestic violence on the part of EP and HF. No protection concerns have been advanced against PY. [ 10 ] The most recent agency involvement arose because of allegations that EP assaulted De. On March 28, 2013, agency workers, Veronica Bernard and Christina McCarthy, interviewed De at his school in Eskasoni.

De disclosed that he had been burned with a cigarette. [ 11 ] De was then taken to the agency ’ s office where he was interviewed by Corp. Glynis Thomas, of the Eskasoni RCMP, and in the presence of protection supervisor, Lucinda Hiscock. During this recorded interview, De confirmed that EP burned his leg with a cigarette. [ 12 ] These disclosures ultimately lead the agency to convene a risk management conference where it was decided that the agency would seek a supervision order with third party family placements.

The protection application was filed on April 16, 2013; interim decisions were rendered on April 22, 2013 and May 10, 2013. De was placed in the care and custody of his paternal grandfather and

step-grandmother. An was originally placed in the supervised care of family members, which was subsequently changed to the temporary care of the agency after the family placement broke down. [ 13 ] The protection proceeding was scheduled for June 26, 2013. At that time, the agency sought, and all respondents agreed, that a protection finding ought to be entered against HF and EP pursuant to s. 22(2)(

b) of the Act because De and An are at a substantial risk of suffering physical harm caused by a parent or guardian failing to supervise and protect the children adequately. [ 14 ] In addition, a protection hearing had to be scheduled because the agency also sought a protection finding against EP under s.22(2)(

a) of the Act based on the allegation that EP burned De with a cigarette. EP was adamant that he did not burn De with a cigarette. [ 15 ] The contested hearing into the protection finding under s. 22(2)(

a) was held on the following dates: June 26 and 27; July 30; August 1, and September 5, 6, and 17. During the course of the hearing, the following witnesses testified: Leah Quilty Doiron, Kelly Spencer, PY, Corp. Glynis Thomas, Veronica Bernard, Christina McCarthy, HF, EP, RP, Lucia Canova, PD, Dorothy Francis, and Blair Wilson. [ 16 ] At the outset of the hearing, a voir dire was convened to determine the admissibility of out-of-court statements made by De, which statements were intended to be entered for the truth of their content. The application to admit these statements was made pursuant to sec. 96(3)(

b) of the Act and the principled approach based upon necessity and reliability. Necessity was admitted. Reliability was in contest. [ 17 ] After reviewing the evidence and submissions, the court held that the statements which De made to the protection workers, and those made to Corp. Thomas, were admissible in that threshold reliability, as articulated in R. v. Khelawon , 2006 SCC 57 (S.C.C.) and R v. Couture , 2007 SCC 28 (S.C.C.) , had been proven. [ 18 ] Further, the parties agreed that all evidence led during the voir dire should be admitted as evidence for trial purposes. I have done so.

HF only testified during the voir dire ; this evidence has been considered as part of the trial evidence. [ 19 ] In addition, between the June and September hearing dates, De made further disclosures. One disclosure arose as a spontaneous utterance to his mother during a recorded access visit held at the agency office. Another disclosure arose after prompting from a family member during another access visit. [ 20 ] A pretrial conference was scheduled to address issues arising from the additional disclosure.

At that time, counsel confirmed that these out-of-court statements met the threshold reliability test and were thus properly before the court. As a result, a voir dire was not required and the statements were admitted into evidence by consent. [ 21 ] The trial was concluded during the scheduled dates in September. The court adjourned. The oral decision was given on October 3, 2013. [ 22 ] At the conclusion of the hearing, the court acknowledged that the protection hearing had not been concluded within the legislative time lines.

Unexpected and unforeseen delays were caused because of the sudden and serious illness of counsel for the agency. Because of this unexpected circumstance, and given the conflicting schedules of counsel and the court, it was physically impossible to have completed the hearing within the time mandated by the Act . This is a most unfortunate and rare event in this court. [ 23 ] I will now turn to the analysis portion of this decision. [ 24 ] Analysis

[25] What principles apply to this protection proceeding? [26] The parties held competing views on basic evidentiary principles applicable to this protection proceeding. These views relate tostandard of proof and principles of credibility determination. I will now review the law which I have followed in this decision. [27] Contrary to what was suggested, there is no sliding scale of proof in civil cases. This issue was categorically resolved in C. (R.)v.

McDougall, 2008 SCC 53 (S.C.C.), wherein Rothstein, J. confirmed that there is only one standard of proof in civil cases - that isproof on a balance of probabilities: para. 40. Evidence must always be sufficiently clear, convincing and cogent to satisfy the balance ofprobabilities test: paras. 45 and 46. The trial judge must scrutinize the evidence with care to determine whether it is more likely than notthat an alleged event occurred: para. 49. [28] In this case, the agency bears the burden of proof.

In order to dislodge this burden, the agency must provide clear, convincingand cogent evidence that EP burned De with a cigarette. The evidence must not be considered in isolation, but must be based upon itstotality. [29] Further, the court must assess the impact of inconsistencies on questions of credibility and reliability, which relate to coreissues. It is not necessary that every inconsistency be addressed, but rather a judge must review in a general way the arguments advancedby the parties: C. (R.) v. McDougall, supra,: paras. 40, 45 and 49. [30] In Baker-Warren v.

Denault, 2009 NSSC 59 (N.S.S.C.), as approved in Hurst v. Gill, 2011 NSCA 100 (N.S.C.A.), this courtreviewed factors to be considered when making credibility determinations at paras. 18 and 19, which state as follows: 18 For the benefit of the parties, I will review some of the factors which I have considered when making credibility determinations. It isimportant to note, however, that credibility assessment is not a science.

It is not always possible to "articulate with precision the complexintermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions ofevents:" R. v. Gagnon, 2006 SCC 17 (S.C.C.), para. 20. I further note that "assessing credibility is a difficult and delicate matter thatdoes not always lend itself to precise and complete verbalization:" R. v. M. (R.E.), 2008 SCC 51 (S.C.C.), para. 49. 19 With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:

a) What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistentstatements, inconsistencies between the witness' testimony, and the documentary evidence, and the testimony of other witnesses: NovakEstate, Re, 2008 NSSC 283 (N.S. S.C.);

b) Did the witness have an interest in the outcome or was he/she personally connected to either party;

c) Did the witness have a motive to deceive;

d) Did the witness have the ability to observe the factual matters about which he/she testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account; 20 I have placed little weight on the demeanor of the witnesses because demeanor is often not a good indicator of credibility: R. v.Norman (1993), (ON CA), 16 O.R. (3d) 295 (Ont. C.A.) at para. 55. In addition, I have also adopted the followingrule, succinctly paraphrased by Warner J. in Novak Estate, Re, supra, at para 37:

There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. (See R. v. D.R. , [1966] 2 S.C.R. 291 at 93 and R. v. J.H. supra ). [ 31 ] I have reviewed the totality of the evidence. I have assigned the civil burden of proof to the agency. I have made credibility findings where there was a conflict in the evidence. Where there is a conflict, I do not accept the evidence of EP or his mother, RP.

I also had reservations about some of the evidence of PD. [ 32 ] EP was not credible. He fabricated evidence at times. For example, EP testified that children were not present during the July 6, 2010 assault. However, Corp. Thomas stated that children were present, as she investigated the assault on the day it occurred, and she spoke with the children at the time. I accept the evidence of Corp. Thomas. [ 33 ] In addition, EP was evasive and self-serving. He was not capable of making an admission against interest. For example, although admitting to an assault conviction, EP minimized his actions.

He attempted to portray his conduct as protective, rather than coercive and criminal. I place little reliance upon EP ’ s testimony. He had no difficulty misrepresenting, misleading, and providing false evidence to the court. He was not credible. [ 34 ] Likewise, I am sceptical of RP ’ s evidence. Her evidence displayed several weaknesses. During the hearing in September, RP recanted a portion of the evidence which she provided during the June voir dire , and further RP de-emphasized other evidence previously provided. For example, in June, RP stated she and EP had substantial contact with De.

RP framed her recollection in reference to the time when De began to attend kindergarten in the fall of 2011. During the voir dire , and based upon this specific reference, RP stated that she and EP were seeing De every other weekend. RP also stated that HF was living with her mother in December 2011, and that her son moved back and forth between her home and HF ’ s home. In contrast, during the September 2013 hearing, RP ’ s recollection changed as it related to the frequency of contact with De, and the residences of both HF and her son.

Because of these inconsistencies and revisions, RP ’ s evidence is given little weight. [ 35 ] In relation to other witnesses, I find as follows: ∙ PY gave clear, consistent and cogent evidence. PY was credible. He spoke of the facts directly within his purview. I accept that he was deeply concerned with the injury which he discovered on De ’ s leg in December 2011. As a result, he took a photo of it. I accept that De was not advanced verbally, and so was unable to tell his father what occurred at the time. I also accept that PY did discuss his concern, regarding the mark on De ’ s leg, with HF in December 2011.

HF was aware of PY ’ s concern in December 2011. Any suggestion to the contrary is not accepted. ∙ Agency workers, Corp. Thomas, and the other involved professionals were credible. They too gave clear, convincing and cogent evidence in a professional and unbiased fashion. They did not attempt to manipulate or embellish the facts. Their evidence was balanced. These professionals were not motivated to provide inaccurate testimony. They had no motive to deceive and only provided factual evidence based upon their knowledge. ∙ PD ’ s evidence must also be approached with caution.

She is a cousin to EP and resides with his family. Her bias was most evident when she described the relationship between EP and HF as “ good, ” despite being aware of the assault, and the frequent break-ups.

Upon cross examination, it became evident that PD was also absent from the home for large segments of time. [ 36 ] These credibility findings have been made in keeping with the principles articulated, after my scrutiny of the totality of the evidence, and after having had the benefit of watching and listening to each of the witnesses during direct and cross examination. [ 37 ] Did EP burn De with a cigarette causing De to suffer physical harm? [ 38 ] Position of the Agency

[ 39 ] The agency states that EP burned De with a cigarette and caused him to suffer physical harm. In support of their position, the agency states as follows: ∙ De provided statements to third party professionals, as well as to his mother, indicating that EP burned him. These statements were consistent over time, and were brought forward in circumstances which are supportive of reliability. ∙ EP made comments which corroborate De ’ s disclosure. For example, on March 28, 2013, when Corps.

Thomas and Johnson, with Lucinda Hiscock, attended EP ’ s residence with HF, EP asked, “ what has De said this time? ” He asked that question before anyone mentioned that an allegation of abuse had been raised by De.

In addition, on April 3, 2013, EP advised that he hadn ’ t hurt De since he had been out of jail, although he later corrected himself to advise that he did not intend to make those comments, and that he was anxious. ∙ De had, and continues to have, scars which provide physical corroboration of an injury consistent with a cigarette burn. [ 40 ] Position of HF and PY [ 41 ] Neither HF, nor PY took a position in respect of the case against EP, vis a vis , s. 22(2)(

a) of the Act . [ 42 ] Position of EP [ 43 ] EP denies the allegation. He states that he categorically has not, and did not, burn De with a cigarette, on any occasion. EP puts forward the following theories to explain what occurred: ∙ The marks on De ’ s leg do not originate from a cigarette burn. There was no medical evidence offered to support such a finding.

In the alternative, and in the event the marks are from cigarette burns, someone else was responsible for the injury. ∙ He did not have the physical opportunity to burn De with a cigarette because EP was in Halifax and Shubenacadie with his brother and girlfriend for the period of time when the incident was alleged to have occurred. ∙ De has a limited ability to communicate because of developmental delays. De is suggestible and easily manipulated.

De was coached by third parties, likely HF ’ s mother, or other family members, into making the allegations against EP. ∙ De does not appreciate the comments that were made. Details of the abuse was not consistent. ∙ The out-of-court statements are not reliable. The statements should not be admitted as evidence. [ 44 ] Law [ 45 ] In order to succeed under s. 22 (2)(

a) of the Act , the agency must prove that De suffered physical harm, which harm was inflicted on him by EP as stated in s. 22(2)(a), which provides as follows:

(2) A child is in need of protective services where (

a) the child has suffered physical harm, inflicted by a parent or guardian of the child or caused by the failure of a parent or guardian tosupervise and protect the child adequately; [46] As part of its case, the agency seeks a finding that three of De’s out-of-court statements, inclusive of gestures made, are reliablefor the truth of their content. Hearsay also applies to conduct which conveys meaning: R v. MacKinnon, 2002 BCCA 249 (C.A.) atpara. 33. [47] Section 96(3)(

b) of the Act must be considered as it provides the court with the authority to admit and consider child hearsay. This

section provides as follows: 96

(3) Upon consent of the parties or upon application by a party, the court may, having regard to the best interests of the child and thereliability of the statements of the child, make such order concerning the receipt of the child's evidence as the court considers appropriateand just, including: (

b) the admission into evidence of out-of-court statements made by the child. 1990, c. 5, s. 96. [48] Best interests is defined in s. 3(2) of the Act. This child focussed definition and approach imports many factors affecting thephysical, emotional, cultural and social well being of the child. I have considered De’s best interests as I am required to do so. [49] Section 96(3)(

b) of the Act was the subject of appellate review in G.A. v. Children’s Aid Society of Cape Breton-Victoria,2004 NSCA 52 (N.S.C.A.). In this decision, Hamilton J.A. noted the important distinction between criminal and child protectionproceedings. She further held that the application of rigid formulas was not appropriate in the child protection context at para. 15,wherein the following was stated: 15 Bearing in mind the context and purpose of the trial judge's exercise of discretion to admit child hearsay pursuant to s. 96(3)(

b) ofthe Act, I am not persuaded it is appropriate to impose any rigid formula for the receipt of such evidence. These are not criminalproceedings where the protections and concerns described in the governing jurisprudence such as R. v. Khan (1990), (SCC), 79 C.R. (3d) 1 (S.C.C.), R. v. Smith, (SCC), [1992] 2 S.C.R. 915 (S.C.C.), and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.) necessarily arise.

Here in the context of child protection proceedings, the discretion granted atrial judge to admit such evidence, whether or not the child in fact ever actually testifies in court, is found in s. 96(3)(b)... [50] It is not necessary for me to consider whether necessity remains a factor to be proven in light of the specific wording of s. 96(3)(

b) because the parties did not advance that argument. Necessity was admitted. Reliability was the sole battle ground. Further, andalthough I am directed not to apply rigid rules, I must nonetheless consider the issue of reliability in the context of the case law which hasdeveloped under the principled approach to hearsay. [51] The starting point of the analysis is the premise that hearsay statements are presumptively inadmissible: R v. Couture, supra,para. 85. The court has the discretion to nonetheless admit the hearsay statements if the agency proves admissibility through indicia ofreliability: R v.

Couture, para. 85. [52] This assessment of reliability involves a two stage process. The first stage, threshold reliability, was discussed and resolvedpreviously. During the second stage, the trier of fact, in this case the court, must assess ultimate reliability based upon the totality of theevidence presented. In R. v. Khelawon, supra, the Supreme Court of Canada held that a functional approach should be adopted whendetermining factors relevant to the assessment of reliability.

In particular, the court should focus on “the particular dangers raised by thehearsay evidence sought to be introduced, and on those attributes or circumstances relied upon by the proponent to overcome thosedangers:” para. 93. The presence of corroborating or conflicting evidence is appropriate to consider at both the threshold and ultimatereliability stage: paras. 4, 100.

[ 53 ] Paciocco and Stuesser in the Law of Evidence , sixth edition, 2011, list factors that can be considered when determining the inherent trustworthiness of a statement, at p. 125, which factors include statements that are made: ∙ spontaneously, ∙ naturally, ∙ without suggestion, ∙ reasonably contemporaneously with the events, ∙ by a person who has no motive to fabricate, ∙ by a person with a sound mental state, ∙ against the person ’ s interest in whole or in part, ∙ by a young person who would not likely have knowledge of the acts alleged, and ∙ whether there is corroborating evidence. [ 54 ] The authors also list safeguards surrounding the making of the statement that could expose inaccuracy or fabrications at p. 125 of their text, which provides the following list of questions: ∙ Was the person under a duty to record the statements? ∙ Was the statement made to public officials? ∙ Was the statement recorded? ∙ Did the person know the statement would be publicized? [ 55 ] Further, the authors note that motive is an important factor in determining reliability.

Any evidence that supports a motive to fabricate negatively impacts reliability. [ 56 ] Substitutes to address hearsay dangers are reviewed at p. 127 by the authors including the following list of questions: ∙ Was the person under oath when making the statement? ∙ Was the making of the statement audio or videotaped? ∙ Was the person cross examined at the time the statement was made? ∙ Is the person available for cross examination? [ 57 ] Decision on the Reliability of the Out-Of -Court Statements [ 58 ] The agency has proven that the following of De ’ s out-of-court statements are reliable:

∙ The unrecorded statement De provided to agency workers, Veronica Bernard and Christina McCarthy, on March 28, 2013. ∙ The videotaped statement made by De to Corp. Thomas, in the presence of agency supervisor, Lucinda Hiscock, at the agency office on March 28, 2013. ∙ The statement made by De while cuddling with his mother during a recorded access visit at the agency office on August 9, 2013. [ 59 ] The fourth statement, however, given by De, after direct questioning by his grandmother, during a July access visit is not reliable.

De ’ s grandmother was leading, coaching, and berating De in an attempt to elicit information from him. [ 60 ] I will now review each of the statements and provide reasons for my conclusions, although recognizing that in so doing, I have examined each of the statements based upon the totality of the evidence and not in isolation. [ 61 ] March 28, 2013 Statement to Agency Workers [ 62 ] Circumstances which negate reliability include the following: ∙ The statements were not given under oath. ∙ De was not cautioned about the importance of telling the truth, or the consequences of telling a lie. ∙ The statements were neither videotaped, nor audiotaped. ∙ Agency workers showed De a cigarette in an effort to prompt a discussion. ∙ De ’ s communication challenges impacted on his ability to verbally convey his thoughts into words. ∙ The disclosure did not occur contemporaneously with the injury. [ 63 ] Circumstances which favor the admission of the statement: ∙ Agency workers met with De at his school in a comfortable surrounding.

De would not have been expecting a visit from the protection workers. ∙ Agency workers maintained notes of their conversation with De, and immediately placed their notes in a written form while the events were still fresh. ∙ Agency workers are trained in note keeping, and interviewing young children. ∙ Agency workers have no motive to lie, nor do they have a set agenda. Veronica Bernard and

Christina McCarthy provided evidence in an unbiased and professional manner. ∙ De spontaneously, and without any prompting, volunteered that his mom ’ s boyfriend, E, was not his friend, and that he didn ’ t like E. ∙ When questioned as to whether E was a nice guy, De responded, “ no, E going jail, kicked out E ” . Further De spontaneously repeated on several occasions that “ E is mean ” , although he did not answer questions as to how E was mean or what E did that was mean. ∙ On one occasion, when agency worker McCarthy asked De whether mommy was nice, De responded, as follows: “ Mommy nice.

E ’ s right mean. ” ∙ Although De was arguably prompted when he was shown a cigarette, De ’ s reaction was not prompted or artificial. In response, De said “ ouch ” and then said “ got burned. ” Through these remarks, De was able to convey his personal, physical response to being burned. This experience was conveyed concretely and based upon personal knowledge. ∙ When asked “ how did you get burned, ” De responded “ E ” . In addition, De immediately pointed to his leg to a circular star burst- like faded scar. He also pointed to another spot on his shin that resembled another star burst-like faded scar.

Further, he showed other scars that were similar in size, circular, faded, and had a star burst-like look to them. ∙ The photograph taken by PY during an access visit on December 20, 2011, shows a physical injury that was fresh and raw, and in keeping with a cigarette burn. On this point, I specifically reject EP ’ s submission that medical evidence or expert opinion is necessary to find that the mark on De ’ s leg, as evidenced by the photograph taken on December 20, 2011, is a cigarette burn. In Jacques Home Town Dry Cleaners v. Nova Scotia (Attorney General) , 2013 NSCA 4 (C.A.) Saunders, J.

A. provided commentary on the use of inferences, their application, and importance, to the decision making process. He noted that an inference is a “ cognitive tool or buckle used to cinch together two potentially related, but still separated propositions: ” para. 31. Saunders J.A. further stated that the making of an inference “ is the intellectual process by which we assimilate and test the evidence in order to satisfy ourselves that the link between the two propositions is strong enough to establish the probability of the ultimate conclusion. ” para.31.

I find as a fact that the injury inflicted upon De, and as shown in the photograph dated December 20, 2011, is a cigarette burn. This is corroborating, physical evidence which enhances reliability. ∙ HF later advised agency workers that De did not like being around EP. [ 64 ] On balance, I have determined that De ’ s verbal communication challenges did not prevent him from reliably providing a statement to child protection workers as to the injuries which he experienced, the cause of those injuries, and the person who inflicted the injuries upon him.

I find De ’ s statement to protection workers reliable on the ultimate reliability phase of the test. [ 65 ] March 28, 2013 Videotaped Statement to Corp. Thomas [ 66 ] Circumstances which negate reliability include the following: ∙ De does not appear to appreciate the importance of telling the truth. ∙ De is not always able to communicate verbally his thoughts in a manner which others can understand. ∙ The statement was not made contemporaneously with the injury.

∙ The statement was not spontaneous in that it immediately followed the statements provided to the agency social workers at De ’ s school. [ 67 ] Circumstances which favour reliability include the following: ∙ Corp.

Thomas is a trained professional with no motive to influence, manipulate, or obstruct the accurate flow of information. ∙ The statement was given in a recorded, audio and video, environment. ∙ De provided specific nonverbal communication that confirm he personally experienced being burned with a cigarette, for example, when he made a sound of being burned, and when he moved his arm to his leg where he was burned, and where the scar was still visible. ∙ De voluntarily stating that E is mean. ∙ De ’ s body language when disclosing what occurred, and his posture, is in keeping with a child who is upset and who does not want to talk about what occurred.

De ’ s body language is not consistent with what the court would expect to observe from a child who was coached. ∙ HF later advising agency workers that De did not like to be around EP. [ 68 ] Upon balancing the various factors, I find that the statement given by De passes the ultimate reliability test as it, again, provides credible detail as to how, where, and who was responsible for burning De with a cigarette. [ 69 ] August 9, 2013 Disclosure During Access Visit. [ 70 ] Circumstances negating reliability in respect of this disclosure include the lack of an oath and caution.

Circumstances which favour reliability include the spontaneous nature of the disclosure, and the fact that the access visit was recorded. During an access visit at the agency office, De snuggled into his mother and stated, “ E done burned me. ” The statement was spontaneous and unprompted. The access visit was being taped because the recorder is always functioning and in play. The tape shows De as animated, and seeking comfort from his mother. The statement is also in keeping and consistent with De ’ s previous disclosure.

The disclosure is likewise corroborated by the scar, which I find to be an injury resulting from a cigarette burn. It is also consistent with earlier communication between HF and agency workers wherein HF stated that De did not want to be in EP ’ s presence. [ 71 ]

Summary on Ultimate Reliability [ 72 ] For the reasons stated, and given the totality of the evidence, and the consistency of the disclosure, and despite De ’ s verbal communication challenges, and despite the lack of an oath or caution, I find that the statements given by De are reliable and true. [ 73 ] I will now review the theories advanced by EP in response to the disclosure. [ 74 ] Lack of Opportunity

[ 75 ] EP suggests that he did not have the opportunity to burn De in December 2011. As stated previously, I dismiss all evidence that suggests that EP lacked the opportunity to burn De at this time. EP did have opportunity. I find that EP continued to have contact with De in December 2011. I also find that EP was angry and jealous when he visited HF and the children prior to Christmas.

I reject the suggestion that this visit occurred after PY took the picture of the cigarette burn in December 2011. [ 76 ] Further, and even if EP visited his brother in Halifax, and a friend in Shubenacadie, EP was nonetheless in Eskasoni in December when he was with De and burned him with a cigarette. [ 77 ] Coaching Allegation [ 78 ] I likewise reject the allegation that De was coached and manipulated into providing false allegations of an assault.

Although the court accepts that there was bad blood between EP and HF ’ s family, there was no credible evidence linking this bad blood to a manipulation and coaching of De. I draw this conclusion for the following reasons: ∙ There is corroborating physical evidence that De was burned in light of the photograph taken on December 20, 2011 and in light of the scars. ∙ De ’ s comments to his mother were spontaneous. The statement was made during an access visit which happened to be videoed because it took place at the agency office. The disclosure was made while De was comfort seeking and snuggling with his mother.

It defies all probability that De could be coached to execute, what would have to be termed a stellar performance, especially in light of the evidence of De ’ s delays. De ’ s words and actions do not appear rehearsed, coerced, or manipulated. To the contrary, they appear sincere. ∙ De described a sensory understanding of being burned with a cigarette that a young child would only appreciate if he was actually burned. This is evident from the noise that De made when he described being burned; the vocalization of being hurt by saying “ ouch, ” and the physical demonstration as to where he was burned.

These tactile descriptions make it exceedingly unlikely that De was coached, or manipulated, into making false statements. ∙ EP, likewise, made statements that suggest he harmed De. On March 28, 2013, Corp. Thomas attended EP ’ s home, with Corp. Johnson, Lucinda Hiscock, and HF. Before being advised of any specific allegation, EP asked, unprompted “ what has De said this time? ” On April 3, 2013, in speaking with Corp. Thomas, EP stated that he “ hadn ’ t hurt De since he ’ s been out of jail. ” EP then said that was not what he meant.

These statements are properly used as inferences to confirm the allegations made by De against EP. [ 79 ] I find that De was not coached, manipulated, or tricked into making false allegations against EP. [ 80 ]

Summary [ 81 ] Mi ’ kmaw Family and Children Services has proven that EP burned De with a cigarette and caused him to suffer physical harm. I accept the three out of court statements of De, as well as the other evidence discussed above, in support of this conclusion. The agency has proven that the requirements of s. 22(2)(

a) of the Act have been met. [ 82 ] Conclusion [ 83 ] Protection findings have been entered against HF and EP pursuant to s. 22(2)(

b) of the Act , and against EP pursuant to s. 22(2) (

a) of the Act . The agency will now prepare its Plan of Care in preparation for the disposition hearing. Ms. MacLeod-Archer is to draft the order forthwith.

Forgeron, J.