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Mobility — Voice of the Child, Exceptions to the Hearsay Rule

By: Philip Epstein

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O. (B.T.) v. A. (A.), 2013 CarswellOnt 17790 (Ont. C.J.):

This mobility case written by Justice Stanley Sherr of the Ontario Court of Justice deals with some of the same kinds of evidence discussed in Children's Aid Society of Toronto v. C. (J.), 2013 CarswellOnt 17791 (Ont. C.J.) (volume 2014-09). In that case, Justice Murray did not allow into evidence various international documents about the security and health situation in Angola. She kept those documents out on the argument that it could not form the basis of her taking judicial notice of what was happening in Angola, and the facts outlined in those documents should be proved in accordance with the strict Morgan standard.

Justice Sherr faced a somewhat similar situation in this mobility case because of the mother's wish to relocate with the children back to Nigeria. That required the Court to hear some evidence about the situation in Nigeria, and whether it would place the children in harm's way. Since the father had expressed severe concerns about the children's safety, the trial judge had to consider how he would deal with some of the evidence that the father wished to put forward. The father had testified that there was significant crime in Lagos. Justice Sherr admitted reports from the United States State Department and the government of Canada that reflected travel concerns in Nigeria. He did so on the basis that the introduction of those documents met the principled hearsay exception of necessity and reliability. He followed the decision of Justice Spence in Hamid v. Mahmood, 2012 CarswellOnt 9070 (Ont. C.J.), who had followed the decision in El-Murr v. Kiameh, 2006 CarswellOnt 2058 (Ont. C.J.) in admitting these kinds of documents. Justice Sherr noted that he would treat such documents with caution as the mother did not have the opportunity to cross-examine the author of these reports.

Justice Sherr declined to admit several newspaper and internet articles submitted by the father about Nigeria, since he felt they did not achieve threshold reliability and were far less reliable that the other documents admitted. In that regard, see Isakhani v. Al-Saggaf, 40 R.F.L. (6th) 284 (Ont. C.A.). In particular he did not admit documents from the United States State Department Report, which stated that kidnappings were a security concern throughout the country and that both Canadian and United States governments warn against non-essential travel to the northern part of Nigeria.

Clearly Justice Sherr could not take judicial notice of the state of health and security, kidnapping and robbery in Nigeria. There may be many different considerations about those issues in the northern part of Nigeria as opposed to the south. The conditions may be very different between those who have no means to protect themselves and those who have paid and have carefully trained security services. Thus, if the court cannot take judicial notice can it go to the next potential step and allow in government documents even though they are clearly hearsay? Justice Sherr in applying the modern exceptions to the hearsay rule, finds that the government-issued documents meet the threshold for liability and are admitted, but, with some caution. This is, of course, a very slippery slope because the government documents are written by anonymous sources that are not subject to cross-examination. In this case, ultimately Justice Sherr was going to allow these children to return to Nigeria, and thus, on the issue of allowing the father to tender some evidence of conditions in Nigeria, he opted to give the husband the benefit of leading that evidence. However, it is clearly a risky exercise to hope that a judge will allow this kind of evidence in as an exception to the hearsay rule. If one was going to mount a case against a relocation based on apprehended danger to the child because of local conditions, that had best be proved by expert evidence, thereby avoiding the problem of rejection of the evidence on the principles of judicial notice, and as an exception to the hearsay rule.

This case has other interesting facets, and in particular, how the wishes of the children were ascertained.

The children were aged 14 and 12, and clearly under the United Nations Convention on the Rights of the Child, and the Children's Law Reform Act, the wishes and preferences of the child have to be ascertained. What weight is to be given to those wishes and preferences is an entirely different matter.

In this case, counsel on a case conference agreed to jointly retain, Lauren Israel, a lawyer who has had training by the Office of the Children's Lawyer with respect to interviewing children. The parties agreed she would be a joint witness at the trial. She would give evidence about the views and preferences of the children, and both parties would have the opportunity to cross-examine her. It was agreed that she was not counsel for the children and would not otherwise participate in the trial. Justice Sherr found this to be a child focused decision by the parties, and it allowed the Court to receive independent evidence from the children about their views and preferences without the need for them to testify in front of their parents.

Ms. Israel testified and explained her process in obtaining the views and preferences of the children. She read the continuing record, met separately with both parents, and then met with the children on three occasions, being once in each parent's home and once at their school. Ms. Israel described the children as mature beyond their age and honest to the point of bluntness. She was confident that the children's views and preferences expressed to her were independent.

In a recent Toronto program for mediators and arbitrators, Dr. Benjamin Garber, a leading American psychologist, gave an important lecture about the interviewing of children and assessing their wishes and preferences. I believe he satisfied a skeptical audience of senior lawyers and mental health professionals that assessing the level of maturity of children is a difficult task that is best left to experts. Age does not relate to maturity, and determining maturity is an exercise that is fraught with difficulty and is not generally the territory of lawyers or judges. That is not to say that a lawyer might not have sufficient training and expertise in order to determine the level of maturity of the child, but ascertaining the child's wishes and preferences without also ascertaining the level of maturity does not really assist the trier of fact.

Since Canada is a signatory to the United Nations Convention on the Rights of the Child and since the Children's Law Reform Act requires the Court to hear the wishes and preferences of the child, this is an area that requires much more consideration and development. Some parts of Western Canada and Eastern Canada use "Voice of The Child Reports" in order to obtain the wishes and preferences, but there is no unanimity of agreement in how the Voice should be obtained, and more importantly, what weight should be given to that Voice.

The vast majority of parents engaged in the family law courts cannot afford a full scale assessment by a mental health professional, and we have to find a satisfactory way of not only obtaining the wishes and preferences of the child, but understanding how those should inform the ultimate decision.

Justice Sherr said this:

The court finds that this view and the preferences of the children are independent. While they are not determinative of the issue, given their age and maturity, their views are afforded considerable weight.

There is no doubt that Ms. Israel carefully conveyed the wishes and preferences of the children to the Court, and that she was satisfied the wishes were independent, and she used a reasonable process to obtain those wishes. In light of Dr. Garber's expert presentation however, I wonder what the process was to determine the level of maturity of the children and I think as we develop better approaches for obtaining the wishes of the children in the future, we need to keep this issue in mind.

Ultimately, Justice Sherr decided on all of the evidence that it was in the children's best interests to grant the mother's application and allow the children to relocate to Nigeria.

The mother did not seek open ended permission to relocate to Nigeria, but rather for a specified period of time. Accordingly, Justice Sherr decided to permit a move for a specified period of time because he had jurisdiction to do so. See Powers v. Powers, 2006 CarswellOnt 11557 (Ont. C.J.) and Connelly v. McGouran, 1999 CarswellOnt 2790 (Ont. S.C.J.). As a result of this order, Justice Sherr determined that the Ontario Court shall retain jurisdiction on all issues related to the children while they are in Nigeria. He goes on to make a multidirectional order as to how access for the father will take place.

An interesting case on some really important issues.

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