February 1, 2022 – Hearsay and Children’s Views

“In Children’s Aid Society of Toronto v. G.S., 2018 ONC 12 (CanLII) the court found that the state of mind hearsay exception includes a child’s wishes and preferences and statements made by the child about his or her physical, mental and emotional state.  The statements must assert a contemporaneous physical, mental or emotional state.  They cannot include the reason for the child’s statement and should not be made under circumstances of suspicion.  The court admitted child statements to show the child’s views and preferences about where she wanted to live and how much access she wanted with her father; her feelings about living with her aunt; feelings about her access with the father; feelings about pressure father was placing on her; statements about her stress level, her pride in her school performance and how she was sleeping and eating for state of mind in Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124.

In D.D. v Children’s Aid Society of Toronto, 2015 ONCA 903 (CanLII), the Court of Appeal addressed the admissibility of hearsay statements made by a child and stated:

36       Further, s. 50 of the CFSA expressly contemplates the admission of written reports of therapists and other persons involved in the child’s care:

Despite anything in the Evidence Act, in any proceeding under this Part [child protection],

(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 or have 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 or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

37        Evidence about a child’s expressed views is often presented through persons to whom the child has communicated. Section 39(5) of the CFSA provides that a child under 12 is not entitled to attend court unless the court is satisfied the child can understand the proceedings and will not suffer emotional harm.

38       Statements about the child’s views and preferences set out in affidavits by Children’s Aid Society workers’ affidavits are admissible: Strobridge v. Strobridge (1992), 1992 CanLII 7488 (ON SC), 10 O.R. (3d) 540 (ONSC).

39       Statements that show the child’s state of mind are also admissible as a general exception to the hearsay rule where they are admitted not for their truth but for the fact that they were said: Paciocco and Stuesser, The Law of Evidence, 5th Ed. at p.176. Here, many of the complained-of hearsay statements were considered by the motion judge in this context.

40       In addition, while in some cases, admission of hearsay might be unfair, here the mother does not point to any particular unfairness resulting from the admission of the evidence presented on the motion. It does not appear that she made any objection to that evidence at the hearing or asked to cross examine the deponents of the affidavits.”

         Children’s Aid Society (Ottawa) v. A.M., 2019 ONSC 694 (CanLII) at 85-86