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No Quick and Dirty Rules of Thumb or Lax Evidentiary Rules in Child Protection Proceedings

by Daniel Gloade on March 21, 2016

In child protection proceedings, there are many pressures to take short cuts on the procedural and evidentiary rules.  Those pressures include:

  • Pressure to resolve the child’s placement quickly;
  • Budgetary pressures on the Society and Legal Aid Ontario;
  • Lack of availability and funding for expert witnesses, especially psychiatrists;
  • The Children’s Aid Society should not take sides in custody disputes unless the child or children are in danger.

However, there is point when there are too many shortcuts.  The case of Catholic Children’s Aid Society of Hamilton v. E.L. and N.R., 2016 ONSC 1789 helps delineate what is necessary to decide a child protection proceeding.  You can read it here.

In this case the Mother and Father resided together with their 5 year old child.  The Child spent considerable time with his maternal Grandmother and Step grandfather.  In spite of this effort, however, the relationship between Mother and Grandmother has always been turbulent.

The Child alleged that the Father touched him (or her) sexually.  The Mother and Grandmother had the police investigate.  The police concluded that the Child’s allegations were credible.  The police arrested the Father. The Father is currently on bail.  He is prohibited from any contact with any member of the family.

The Mother believes that the Grandmother and Step grandfather told the Child to lie about the sexual assault.  The Mother has ceased their access to the Child’s.

Children’s Aid brought an Application.  They wanted the child to reside with Mother under supervision for 6 months.  The C.A.S. workers were concerned that the Mother refused the protection worker’s request to interview the child.  They were also concerned about Mother’s ambivalence about the charges against the Father.  The C.A.S. workers also wanted the grandparents to have access to the Child.

In December 2015 the Honourable Justice Brown held that:

  • Child shall live with Mother
  • No contact with Father
  • Child shall be interviewed by a Child Protection Worker.

The Grandmother and Step grandfather wanted access to the Child.  The C.A.S. agreed with them.  The court refused to make that order, however.

The Grandparents brought a separate motion to see the Child. The Mother opposed the motion.  The C.A.S. took no position.  This summary is the Order arising from the Grandparent’s motion.

The Honourable Justice D.J. Gordon felt that the C.A.S. taking no position was unacceptable because:

  • They took no steps to investigate the sexual assault complaint even when they were permitted to do so by court Order;
  • They changed their position regarding the Grandparents without providing evidence as to why;
  • There was evidence about the Child’s best interests before the court and yet the C.A.S. took no postion;
  • The Office of the Children’s Lawyer was not yet appointed to provide an assessment on the child’s best interests.

The Mother was seeing a psychotherapist about bi-polar disorder.  A psychotherapist provided affidavit evidence.  She sided with the Mother and was critical of the Grandparents.  The Honourable Justice Gordon held that this was improper because:

  • She treated both Mother and Grandparents.  There was a conflict of interest;
  • She was a treating physician.  She can only provide evidence as to the Mother’s treatment. She cannot provide an opinion regarding the merits of the case;
  • Even if she was an expert, she would need to provide an expert report.
  • Although experts can provide opinions about important issues they should not comment about who should win a legal dispute.

With regard to the Grandparents, there is conflicting case law.  There is no dispute that, for now, the Mother should have custody of the daughter.  Doesn’t the custodial parent decide with whom the child visits?

Justice Gordon held that one should look at the child’s best interests.  The Grandparents were not just visitors or occasional babysitters.  They formed an independent bond with the Child.  Also, the Mother’s decision was based on her concern that the Grandparents were prompting the Child to make the allegations.  This was a theory.  There was no real evidence of this.

The Honourable Justice Gordon ordered the Grandparents’ access to resume.

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