Children’s Aid Society of Halton Region v. J.O., 2013 ONCJ 191

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7) , 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. COURT FILE No.: Halton 596/11 DATE: 2013·04·15 Citation: Children’s Aid Society of Halton Region v. J.O. , 2013 ONCJ 191 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY, REGION OF HALTON Applicant, — AND — J. O. (Mother) G. O. (Father) Y. A. (Father of J.A.) Respondents Before Justice S.

O’Connell Heard on April 4, 2013 Decision released on April 15, 2013 Vanessa Kaljaste .................................................................................... for the applicant society William Sullivan ........................................................................ for the respondent mother, J. O.

G.O., respondent father …………………………...................................................... on his own behalf Peter Tensuda, John V.

Grant .................................... for the Office of the Children’s Lawyer, legal representatives for the children O’CONNELL J.: [ 1 ] The issue to be determined in this motion is whether or not the transcripts of the children’s evidence taken at a preliminary hearing in criminal proceedings are admissible for the truth of their contents in a child protection trial without making the children available for cross-examination on those transcripts. [ 2 ] This matter is scheduled to proceed to trial on April 22, 2013. Seven days of trial have been set. The trial is proceeding as a bifurcated hearing.

The threshold issue of whether there should be a finding that the children are in need of protection is disputed by both parents. [ 3 ] For the reasons that follow, I have determined that the children should be available to be cross-examined on the transcripts from the preliminary hearing, however, subject to a number of safeguards. Background : [ 4 ] The children are J. A., born [….., 1996], K. O., born [……, 2001] and D. O., born […, 2005]. They are now 17, 11, and 8 years old. [ 5 ] The respondent, J.O. is the biological mother of the three children. The biological father of the oldest child, J.A. is Y.

A., who is deceased. The respondent, G.O. is the biological father of the two younger children, and he has also acted as a father to J.A. [ 6 ] The child, J.A., resided in Ghana from the time of his birth until the age of 12, at which time he came to Canada to reside with his mother and stepfather. The children, K.O. and D.O., have always resided in Canada with their mother and father. [ 7 ] On December 14, 2011, J.A. was interviewed by a society worker and the Halton Regional Police regarding statements that he made to his school teacher.

He disclosed that all three children endured severe physical and emotional abuse by the parents. On December 15, 2011, the two younger children were also interviewed by the Halton Regional Police, while the society protection worker observed.

The two younger children corroborated the disclosures made by the oldest child. [ 8 ] After those interviews, all three children were apprehended from their parents’ care by the children’s aid society on December 15, 2011. [ 9 ] On December 19, 2011, as a result of the children’s statements to the police and the society worker, the mother was charged by the Halton Regional Police Service with: • seven counts of assault with a weapon • two counts of Assault • one count of failing to provide the necessities of life • one count of administering a noxious substance • one count of sexual assault with a weapon [ 10 ] The father was also charged by the Halton Regional Police Service at the same time with the following charges: • one count of assault • one count of failing to provide the necessities of life • one count of administering a noxious substance • one count of uttering threats [ 11 ] On December 20, 2011, the society commenced a child protection application seeking a finding that the children are in need of protection pursuant to s. 37(2) (a)(ii) of the Child and Family Services Act , R.S.O. 1990, c.

C.11, as amended (“the Act”) and an order that the children be made wards of the society for a period of seven months, subject to the terms and conditions set out in the plan of care filed. [ 12 ] This matter was ready to proceed to trial in November of 2012. At the trial management conference on November 22, 2012, the parties agreed to proceed with the trial on February 4, 2013 so that the children’s evidence in the preliminary hearing in the criminal proceedings could be available for the child protection trial.

On November 22, 2012 I made the following endorsement: “The parties have agreed to proceed with the trial in this matter on February 4, 2013 so that the transcripts of the children’s evidence in the preliminary hearing obtained and paid for by the society can be available for the child protection trial, subject to the right of the

parties to cross-examine the children on the transcripts at the child protection trial.” [ 13 ] The preliminary hearing took place on January 15, 16, 17 and 18, 2013. All three children testified at the preliminary hearing. Unfortunately, the transcripts of the children’s evidence could not be prepared in time for the child protection trial.

At a motion brought by the society on January 24, 2013, the parties consented to adjourn the child protection trial to April 22, 2013. [ 14 ] At the same motion, the society also sought an order that any cross-examination of the children on the transcripts at trial take place by way of closed circuit television. Counsel for the respondent mother consents to proceeding in such a manner.

He also consents to conducting the cross-examination on behalf of both parents so that the children are not subjected to cross-examination by their father (the father is self-represented). [ 15 ] At that motion, counsel for the children advised that they were opposed to the children being cross-examined at trial on the transcripts of their evidence at the preliminary hearing. They both advised that their understanding of my order dated November 22, 2012 was that the issue of the right to cross-examine the children on the transcripts of their evidence in the criminal proceeding was still open for argument.

Both counsel vigorously opposed having their clients subject to cross-examination in the child protection trial. It is their position that the transcripts should be received at the child protection trial as admissible evidence without the children being made available for further cross-examination. [ 16 ] Counsel for the society and counsel for the mother disagreed with this

interpretation of my order dated November 22, 2012. It was their understanding that the transcripts from the preliminary hearing were admissible only subject to cross-examination. Counsel for the mother submitted that he would never have consented to admitting the children’s transcripts as evidence in the child protection trial if he was not entitled to cross-examine the children on that evidence. [ 17 ] A motion was therefore scheduled before me on April 4, 2013 regarding the correct

interpretation of my order dated November 22, 2012 and what order should be made regarding the introduction and or admission of the transcripts of the children’s evidence at trial and whether the mother’s counsel and the society’s counsel have the right to cross-examine the children on this evidence. [ 18 ] It is my understanding that the parents were committed to trial after the preliminary hearing on a number of the charges. The dates set for the criminal trial have not yet been scheduled. [ 19 ] This trial is proceeding by way of a bifurcated hearing.

The threshold issue of whether the children are in need of protection is hotly contested. The parents take the position that the oldest child has serious emotional and behavioural problems which has caused him to make false or inaccurate statements about the parents and to influence the younger children. The Society has candidly conceded that the evidence it is relying upon to support a protection finding under section 37(2) (a) (ii) of the Act is the children’s disclosures. There is little or no corroborating evidence.

Position of counsel for the children : [ 20 ] Both counsel for the children submit that it is contrary to the children’s best interests to force them to testify in the child protection proceedings. It is their position that when receiving children’s evidence in the context of a child protection hearing, reliable hearsay evidence is always preferred over direct evidence from children in order to protect them from harm and to promote their best interests.

Indeed, unlike a criminal trial, the paramount purpose of the Child and Family Services Act , the legislation governing these proceedings, is to promote “the best interests, protection and well-being of children.” Mr. Grant submits that it would be “ironic in the extreme” to cause further harm to these children by forcing them to testify against their parents in order to determine their best interests. [ 21 ] In the case before me, the argument focused on the requirement of necessity, the first prong of the two part test under the principled exception to the hearsay rule.

The threshold reliability of the children’s statements, taken under oath before a criminal judge at the preliminary hearing, and subject to cross-examination by two defence counsel was not seriously challenged. [ 22 ] Both counsel submit that a number of judges have determined that the requirement of ‘necessity’ established in the Khan [1] case before receiving children’s hearsay evidence is considerably relaxed in child protection proceedings and in some cases, not considered at all. [ 23 ] Counsel submit that the children will be traumatized if they must testify again after testifying at the preliminary hearing.

If harm or trauma to the children is established, then the requirement of necessity to receive the children’s hearsay evidence has been met. Mr. Grant has filed in support of this position an affidavit of Ms. Eileen Spraggett, sworn February 27, 2013. Ms. Spraggett is a clinical investigator with the Office of the Children’s Lawyer. Ms.

Spragett interviewed the two youngest children, now ages 11 and 8, at length on February 20, 2013 with respect to the child protection trial and specifically with respect to having to testify. [ 24 ] According to the affidavit evidence of Ms Spraggett, both children spoke about their experience of giving evidence and being cross-examined at the preliminary hearing and it was apparent that their experience made them “upset and very uncomfortable.” In particular the youngest child indicated that he was both “nervous and scared.” [ 25 ] When Ms.

Spragett spoke to the children about the possibility of giving further evidence in this proceeding, she deposed that, “both were adamant that they did not wish to do so and it was also evident from their body language that the possibility of being required to do so made them very nervous and upset.” [ 26 ] Mr.

Tensuda, counsel for the oldest child, who is now 17 years old, did not file any affidavit evidence regarding the child’s views or reaction to testifying in this trial, however, he did file a number of exhibits regarding this child’s need for an assessment, treatment and counselling as a result of his emotional and behavioural issues. As well, Mr. Tensuda filed hospital records which indicate that J.A. was admitted to hospital on February 22, 2013 with back and chest pain the day before he was to appear in youth court on a criminal matter and several weeks after he testified at the preliminary hearing.

He was discharged from hospital the same day with prescription medication for what appears to be back pain. Although there is no medical evidence regarding the source of Jeffrey’s pain,

Mr. Tensuda submits that one should reasonably infer from this evidence that Jeffrey will be traumatized and suffer anxiety if he had totestify in the child protection proceedings. [27] In an alternative argument, counsel for the children submit that section 50(1) of the Act trumps the Khan test of necessityand reliability as it specifically allows for the admission of transcripts from criminal proceedings into evidence without any considerationof the rules of evidence. They submit that as long as the requirements of section 50(1) (

a) and (

b) are met, the court has discretion toadmit hearsay evidence without consideration of the criteria in R. v. Khan, supra. [28] Finally, Mr. Grant submits that his clients are both under the age of 12 and therefore cannot be compelled testify at thechild protection trial pursuant to section 39 (5) of the Act, which reads as follows: “Child under twelve (5)A child less than twelve years of age who is the subject of a proceeding under this

Part is not entitled to receive notice of theproceeding or to be present at the hearing unless the court is satisfied that the child, (

a) is capable of understanding the hearing; and (

b) will not suffer emotional harm by being present at the hearing, and orders that the child receive notice of the proceeding and be permitted to be present at the hearing.” Discussion of the Law and Analysis: [29] Unlike a custody and access case between private individuals, a child protection case involves the state as a litigant withsubstantial powers to remove children from families when necessary to protect them, sometimes permanently. Although civil in nature, achild protection proceeding is quasi-criminal in certain respects.

However, unlike a criminal case, the application of the rules of evidencein child protection cases poses distinct challenges. The primary focus of a child protection case is the protection and well-being of thechildren involved. The best interests of the children are considered paramount.

Child protection judges have struggled with ensuring thatthe best evidence and information is available to appropriately decide a case in a way that is least harmful to the children involved, but inaccordance with the principles of fundamental justice. [30] It is now clear that that the unwanted interference by the state in the care and custody of children though a childprotection proceeding can give rise to a breach of

section 7 of the Canadian Charter of Rights and Freedoms, unless the proceeding isconducted in accordance with the principles of fundamental justice. In New Brunswick Minister of Health v. J.G., [1999] 3 S.C.R. 46,244 N.R. 276, 216 N.B.R. (2d) 25, 552 A.P.R. 25, 177 D.L.R. (4th) 124, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203, [1999] S.C.J. No. 47,1999 CarswellNB 305, (S.C.C.), Chief Justice Antonio Lamer of the Supreme Court of Canada stated the following atparagraph 70: “… the principles of fundamental justice in child protection proceedings are both substantive and procedural.

The state may only relievea parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for making thisdetermination. ... For the hearing to be fair, the parent must have an opportunity to present his or her case effectively. ... If [they are] denied theopportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child's bestinterests.

There is a risk that the parent will lose custody of the child when in actual fact it might have been in the child's best interest toremain in his or her care.” [31] It is well recognized that the principles of fundamental justice are inconsistent with the admission of potentiallyunreliable, untestable evidence. Rules of evidence regarding hearsay must be considered and applied when such important issues arebeing determined.

The question of whether the rules regarding hearsay evidence should be relaxed when children are giving evidence inchild protection proceedings have been considered by a number of different judges. [32] In R. v. Khan, supra, the Supreme Court of Canada first established the “principled approach” as another exception to thehearsay rule when considering children’s evidence. That case involved the out of court statements of a very young child to her motherabout being sexually abused. R. v.

Khan established that the hearsay statements of a child may be received as evidence at trial if the tworequirements of ‘necessity’ and ‘reliability’ have been met. Speaking for the majority, Justice Beverley McLachlan described these dualcriteria as follows at pages 104 to 105: “The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as"reasonably necessary". The inadmissibility of the child's evidence must be one basis for a finding of necessity.

But sound evidencebased on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. Theremay be other examples of circumstances that could establish the requirement of necessity. The next question should be whether the evidence is reliable. Many considerations such as timing, demeanour, the personality of thechild, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may berelevant on the issue of reliability.

I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certaincategories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable. Thematters relevant to reliability will vary with the child and with the circumstances, and are best left to the trial.” [Emphasis added.] [33] The principled approach to the exception of the hearsay rule has been expanded beyond the context of children’s evidencein a number of Supreme Court of Canada criminal cases which follow R. v.

Khan.[2] Further, a number of cases have subsequently

explored the necessity requirement that must be established in order for children’s hearsay evidence to be received. In R. v. Rocky, (SCC), [1996] 3 S.C.R. 829, 204 N.R. 214, 95 O.A.C.134, 140 D.L.R. (4th) 503, 110 C.C.C. (3d) 481, [1996] S.C.J. No.114, Chief Justice McLachlan stated at paragraph 28: “The argument for the appellant on trauma suggested that only the most severe trauma could justify a conclusion of necessity. Irespectfully disagree. Mere discomfort is not enough.

But where there is evidence, as here, that an already traumatized child might befurther traumatized by being questioned by strange men in a strange situation, that suffices. The court is not required to wait for proof ofactual harm to the child.” [34] Some courts have adopted a less strict requirement to prove necessity for the reception of hearsay evidence of children inchild protection proceedings. In the often cited decision of E.S. v. D.M. (1996), (NL SC), 143 Nfld. & P.E.I.R. 192,448 A.P.R. 192, [1996] N.J. No. 216 (Nfld.

U.F.C.), Justice Puddester stated the following: “At one point in its decision [in Khan] the Supreme Court deals with the importance of the right to cross-examine as underlying the basisfor the hearsay rule. Interestingly, the court indicates that in cases where further trauma may be caused to the child victim throughundergoing such a process, cross-examination is not necessarily an "overriding" consideration. Clearly, in civil proceedings as here thereis no accused, and it might be argued that concern as to the absence of cross-examination is by that very reason of lesser import.

Indeed,it might be said that in cases involving child protection issues, where the focus is on the best interests of the child rather than on therights or liabilities of the parents, the absence of the ability to cross-examine is for that reason also of less weight in the equation, thusjustifying a less "strict" requirement to prove "necessity" for the reception of hearsay evidence.” [par. 120] [35] However, in almost all of the cases relied upon by counsel for the children that they submit adopt a relaxed approach tothe issue of necessity, there was expert testimony or therapeutic evidence that the children would suffer trauma, in some cases, extremetrauma, if they had to testify in the child protection proceedings.

This meets the requirement of ‘reasonable necessity’, as defined byJustice McLachlan in Khan. An analysis of these cases follows. [36] In Children’s Aid Society of the County of Simcoe v. C.L.S., (ON SC), [2000] O.J.

No. 3404, 38 C.R. (5th) 107, 99A,C,W,S, (3d) 614 (S.C.J.), Justice Lydia Olah held that the requirement of necessity had been established because thechildren’s therapist, who was qualified to give expert evidence, testified that one child would suffer trauma by having to give furthertestimony in the child protection hearing and the other child had significant behavioural and cognitive disabilities and could not providecoherent viva voce evidence. [37] In Children’s Aid Society of Brant v. E.R., [1993] O.J. No. 2382 (Ont. Prov.

Div.), the 13 year old child had attemptedsuicide and was hospitalized after giving evidence at her step-father’s criminal trial. The child had testified twice in the criminalproceedings and Justice Heather Katarynych was satisfied that there was sufficient evidence that the child would suffer harm and traumaif required to testify in the child protection proceedings. The court ruled that a transcript of the child’s evidence in the criminalproceedings and the videotaped interview with the police could be received as evidence in the child protection trial without cross-examination of the child. [38] In G.H. v.

British Columbia (Superintendent of Family and Child Service), (BC CA), [1984] B.C.J. No.24, 59 B.C.L.R. 359, 44 R.F.L. (2d) 179, 29 A.C.W.S. (2d) (C.A.), the British Columbia Court of Appeal restored a trial judge’s decisionthat admitted the hearsay evidence of two girls, ages 8 and 9 years old, because the children’s psychologist testified that one of thechildren was “deeply disturbed” and the children’s testimony could not be relied upon if they were called to give evidence.

Further, thechildren’s doctor testified that it would not be in the children’s best interests to testify. [39] In the case before me, I have no evidence, expert or otherwise, that the children are unable to testify or that they would bepsychologically traumatized or harmed if they were subject to cross-examination at the child protection trial. I have no evidence that thechildren suffered any harm or traumatic set-back after they testified at the preliminary hearing. I have no evidence that the children werenot capable of testifying at the preliminary hearing.

The only evidence that I have is the affidavit evidence of the social worker for theChildren’s Lawyer, Ms Eileen Spraggett, who interviewed the two younger children on one occasion and deposed that they were“nervous and scared” about having to testify again. As Justice McLachlan stated in R. v. Rocky, supra, “mere discomfort is not enough”to establish the requirement of reasonable necessity. [40] There is also no evidence led at all about the impact of testifying again on the oldest child.

Counsel for Jeremy led aconsiderable amount of evidence about Jeffrey’s behavioural difficulties and his involvement with the youth criminal justice system, butthere was no suggestion that he could not give coherent evidence at the child protection trial, nor was it possible to establish anyconnection between Jeffrey’s behaviour and other difficulties with the prospect of giving evidence in the child protection trial. J.A.’behavioural difficulties and involvement with the youth criminal justice system started well before he gave evidence at the preliminaryhearing.

There was also no evidence that J.A. was harmed by giving testimony at the preliminary hearing, nor any evidence about hisviews or preferences in testifying at the child protection trial. J.A. is now 17 years old and presumed to be capable of giving evidence. [41] I do not wish to minimize the nervousness that the children will experience, and I am very mindful of this. However, therequirement of necessity has not been met, not even on the relaxed or less strict requirement that counsel for the children urge me toadopt.

I must also be concerned about trial fairness and the impact on the parents if they are denied the opportunity to cross-examine thechildren. It appeared to me, in listening to the capable argument of counsel for the children, that it is their position, and the position ofthe Office of the Children’s Lawyer, that the requirement of necessity under Canadian law for the admission of children’s hearsaystatements in child protection proceedings should simply be eliminated.

This may be their position, but it is not the law. [42] Counsel for the children submit that the decision of Justice John Kukurin in Children’s Aid Society of Algoma v. R.L. andJ.L., [1996] O.J. No. 2306 supports the proposition that the requirement of necessity need not be considered when considering theadmissibility of criminal transcripts in child protection proceedings. I respectfully disagree. In my view, this is a misreading of JusticeKukurin’s decision. In that case, the society sought a protection finding after apprehending the child from her stepmother’s care forphysically abusing the child.

The stepmother was subsequently convicted in a criminal trial for assaulting the child on the same incidents

of abuse that led to the child’s apprehension in the child protection case. At the protection stage of a bifurcated hearing, Justice Kukurin,on consent of all parties, received evidence of the transcript of the prior criminal trial (which included the child’s testimony), the findingof guilt and the criminal judge’s disposition, without requiring the child to be cross-examined.

Although Justice Kukurin expressed somereservations, there was no consideration of the requirement of necessity because it is clear from a review of the case, that all counsel hadagreed that the criminal transcript and finding of guilt would be admissible without cross-examination of the child. [43] The issue before Justice Kukurin was how much weight that evidence should be given.

Counsel for the step-mother (whowas also her defence counsel at the criminal trial) argued that it should be given less weight and that the viva voce evidence of thestepmother should be preferred when determining the issue of the protection finding.

In the case before Justice Kukurin, the criminalcourt judge had convicted the step-mother of assaulting the child after hearing all of the evidence and had made findings of credibilityabout the child and the step-mother Under Canadian law, a criminal conviction is admissible in a civil proceeding and generallyconstitutes prima facie proof, not conclusive proof, of the underlying facts or guilt, although it can be rebutted with evidence that was notavailable at the criminal trial. See W.H. v. H.C.A., (ON CA). [44] In this case, there has not been a criminal conviction.

There has been no finding of guilt nor have there been any findingsof credibility made by the criminal court judge. The children testified at a preliminary hearing where the judge’s function is solely todetermine whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The thresholdis low.

The children will be testifying at the criminal trial, which will occur after the child protection trial. [45] The requirement of necessity before receiving children’s hearsay evidence cannot and should not be discarded in childprotection cases, even if the threshold requirement of the reliability of that evidence has been met.

Principles of fundamental justice stillapply to child protection cases, particularly at the threshold stage of whether the children should be found to be in need of protection,which is the only justification for state intervention into the life of a family. [46] In the circumstances of this case, when the only evidence to support a protection finding are the children’s statements, itwould be very unfair to the parents, through counsel, not to be permitted to cross-examine the children on those statements given what isat stake in this trial.

I recognise that the children were cross-examined by defence counsel at the preliminary hearing (who wereapparently given very wide scope), but the focus of a preliminary hearing is very different than a child protection trial. Further, theparent’s counsel in this trial was not defence counsel. He may have very different questions that focus on the issues that a childprotection judge needs to determine, not a judge at a preliminary hearing in a criminal proceeding. [47] Credibility will be an important issue in this trial.

As I understand it, counsel for the mother will be arguing that the oldestchild influenced the other children to make false statements about the parents regarding the alleged abuse that is at issue in this protectionhearing and which triggered the children’s apprehension from the parents’ care. [48] It is therefore incumbent on the court to have the best evidence available, particularly if the court is considering theremoval of the children from their parents’ care.

While the transcripts of the children’s evidence will assist the court and willconsiderably shorten the children’s testimony, the transcripts are not the best evidence to determine credibility and to assess thedemeanour of the children. The transcripts do not offer the same value as hearing and seeing the children directly when giving theirevidence. I am extremely concerned about accepting this hearsay evidence on such a crucial issue at this stage in the child protection trialwithout the benefit of directly observing the children.

This is in the children’s best interests as well as being consistent with principles offundamental justice. [49] In my view, on the issue of the protection finding, a court should be very cautious in admitting hearsay evidence that isnot subject to cross-examination given the very serious consequences of state intervention to both the parents and the children.

Iacknowledge that a more relaxed approach to the requirement of necessity may be considered at the disposition stage after a protectionfinding has been made and the trial judge’s focus then shifts to what placement order is in the best interests of the child. This was theconclusion of Justice David Aston in Children's Aid Society of London and Middlesex v. B.B. and J., (ON SC),[2000] O.J. No. 235, (2000), 4 R.F.L. (5th) 183, (Ont. Fam. Ct.), where he stated: “The court's role on the adjudication of child protection proceedings has a dual character.

In determining whether or not a child is in needof protection, the court's role is to determine disputed facts between litigants, and there is no rationale for its relaxing the rules ofevidence. However once a determination has been made that a child is in need of protection, the rights of the parents are subjugated tothe best interests of the child, and the court assumes a role much more closely aligned with the historical parens patriae jurisdictionexercised in England and described in Winnipeg Child and Family Services v. L.(L.).”

Section 50 of the Act: Past Conduct Evidence: [50] The alternative argument advanced by counsel for the children is that the transcripts of the children’s evidence can bereceived under Section 50 (1) of Act (what was formerly known as the “past parenting provision”) without any consideration of the rulesof evidence. They rely on the decision of Justice Joseph Quinn in Children's Aid Society of Niagara Region v. D.P. and S.B. (ON SC), [2002] O.J. No. 4015, (2002), 117 A.C.W.S. (3d) 577, 2002 CarswellOnt 3436 (Ont. Fam.

Ct.), who considered section50(1) of the Act and stated as follows at paragraph 24: “24 Are the transcripts and affidavits, sought to be placed in evidence by the society, hearsay evidence? Yes. Must the"necessity" and "reliability" requirements of The Queen v. Khan, (SCC), [1990] 2 S.C.R. 531, 113 N.R. 53, 41 O.A.C.353, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1, [1990] S.C.J. No. 81, 1990 CarswellOnt 108, be met? No. In my view, subsection 50(1) trumpsThe Queen v. Khan. As long as the requirements of clauses 50(1)(

a) and (

b) are met, there is a discretion in the court to admit hearsayevidence without consideration of the criteria in The Queen v. Khan.” [51] Section 50 (1) provides as follows:

“Evidence Past conduct toward children 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. 1999, c. 2, s. 12.” [52] However, this

section clearly addresses evidence of past parenting or conduct. This has been defined as evidence of “pastchild rearing practices and conduct on the part of the same parent or parents in relation to a child in the care of one or both of them, otherthan a child who is the subject matter in the current proceeding in which evidence is offered.” [3] [Emphasis added.] [53] Here the transcripts sought to be admitted deal specifically with the parenting that is directly at issue in this case: thechildren’s statements of the physical abuse which led to their apprehension. This is not past parenting evidence.

It is also the keyevidence on the issue of the protection finding in this case. The transcripts sought to be admitted before Justice Quinn in the case citedabove were transcripts of previous child protection hearings involving the same parents, but different children who had been removedfrom their care previously. The discussion regarding hearsay admissibility in that case was restricted to past parenting. [54] Further, as Justice Penny Jones has explained in Catholic Children’s Aid Society v. J.L. [2003] O.J. No. 1722, 39 R.F.L.(5th) 54, , 2003 CarswellOnt 1685, 122 A.C.W.S. (3d) 877, the

interpretation of this

section has given rise to twodistinct lines of authority. Some judges have seen this

section as “creating special rules of evidence for proceedings under

Part III of theAct" and have broadly exercised their discretion to admit evidence with any concerns about reliability going to weight.” Other judgeshave interpreted this

section narrowly. They have read the discretion to admit evidence as subject to the rules of evidence and proceduralfairness. The criteria of necessity and reliability still apply. (See paragraphs 28 and 29 of the decision). [55] Although not necessary for me to address for the purposes of this discussion, it would seem to me that the Supreme Courtof Canada’s decision in New Brunswick Minister of Health v. J.G., supra, makes it clear that admitting hearsay under section 50(1) of theAct can give rise to a

section 7 Charter violation unless principles of fundamental justice are followed. Section 39 (5) of the Act-Parties and Notice: [56] Finally, counsel for the two younger children submit that his clients cannot be compelled to testify under section 39(5) ofthe Act, which provides that children under 12 are not entitled to notice or to be present at a child protection hearing unless the child iscapable of understanding the hearing and the child will not suffer emotional harm by being present at the hearing. This

section simplyaddresses the issues of who is a party to a child protection application and therefore entitled to notice, and the right to be present as aparty during a hearing. It is not applicable to the issue of children’s testimony and does not override the rules of evidence or the OntarioEvidence Act, R.S.O. 1990, E. 23[4] which addresses the issue of competency of child witnesses. [57] In any event, the children will not be present during the hearing. They will be in a closed circuit television room and onlyparticipating for that portion of the hearing in which they are cross-examined.

I have already determined that there is no evidence thatthey will suffer emotional harm by being subject to cross-examination. There was further no suggestion that they were not competent totestify, having previously testified in the preliminary hearing. Conclusion and Order: [58] As I noted earlier, I am concerned that testifying again will be a difficult experience for the children.

As the trial judge, Iwill do everything in my power, in my role as gatekeeper, to ensure that the cross-examination is not unnecessarily repetitive and that thechildren are provided with some measure of protection through the use of the closed circuit television room and a support person whowill be present with them at all times during their testimony. I will also ensure that the father, who is self-represented, cannot questionthe children.

All cross-examination will be conducted by mother’s counsel, an experienced child protection lawyer. [59] Accordingly, I make the following ruling: the children shall be made available to be cross-examined on the transcriptsfrom the preliminary hearing, subject to the following safeguards: 1. The cross-examination of the children shall take place by way of closed circuit television, pursuant to

section 18 of the OntarioEvidence Act; 2. A protective or support person shall be present with the children throughout their testimony pursuant to

section 18 of the OntarioEvidence Act; 3. The mother and father shall not be permitted to directly cross-examine the children. All cross-examination of the children on behalfof both parents shall be conducted by the mother’s lawyer, Mr. Sullivan. [60] Finally, I wish to thank all counsel for their very helpful submissions and the case law provided.

Released: April 15, 2013 Signed: “Justice Sheilagh O’Connell” [1] R. v. Khan, (SCC), [1990] 2 S.C.R. 531, 113 N.R. 53, 41 O.A.C. 353, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1, [1990]S.C.J. No. 81, 1990 CarswellOnt 108 (S.C.C.).