NOVA SCOTIA COURT OF APPEAL
Citation: M.J.B. v. Family and Children’s Services of Kings County,
2008 NSCA 64
Date: 20080710
Docket: CA 293002
CA 293004
Registry: Halifax
Between:
M.J.B. and K.B.
Appellants
v.
Family and Children’s Services of Kings County
Respondent
Restriction on publication: pursuant to s. 94(1) of the Family and Children’s Services Act
Judges: MacDonald, C.J.N.S.; Bateman and Oland, JJ.A.
Appeal Heard: June 4, 2008, in Halifax, Nova Scotia
Held: Appeal allowed in part per reasons for judgment of Bateman, J.A.; MacDonald, C.J.N.S. and Oland, J.A. concurring.
Counsel: Sharon L. Cochrane, for the appellant M.J.B.
Peter Van Feggelen, for the appellant K.B.
Donald B. MacMillan, for the respondent Family and Children’s Services fo Kings County
Peter McVey, for the respondent Minister of Community Services
PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 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:
94(1) 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.
Reasons for judgment:
[1] Each of the mother and father appeal from a January 24th, 2008 determination by Levy, J.F.C. in a child welfare proceeding finding their daughter in need of protective services.
BACKGROUND
[2] The protection application initially involved the appellants’ two daughters, to whom I will refer as “the elder daughter” (born March *, 1992) and “the younger daughter” (born November *, 1995). (editorial note- dates removed to protect identity) The children were apprehended by the respondent Family and Children’s Services of Kings County (“the Agency”) on July 31st, 2007 and a protection proceeding commenced. The elder daughter was then fifteen years old and the younger, eleven. At the time of the apprehension the appellants were married but separated. The daughters were, by agreement, in their mother’s care but there was no formal custody order.
[3] The appellant mother has a daughter of a previous marriage, D.E.B., (born July *, 1985) (editorial note- date removed to protect identity) who had lived with the appellants until the spring of 1999 when she alleged that she had been sexually abused by the appellant father on a number of occasions. The father was criminally charged. Although he was tried and acquitted, the Agency found the allegations to be credible and commenced a protection proceeding in relation to all three children.
[4] The mother and father separated in March, 1999. That fall D.E.B. went to live with her maternal aunt, C.F., who resides in Western Canada. The Agency agreed that the two younger daughters could remain in their mother’s care on condition that the father did not live with the family and that his access with the children be supervised. Additionally, the father was to receive treatment for sexual deviance. The specifics of the father’s treatment and the conditions under which he would exercise access were embodied in a written agreement between the Agency and the parents titled “Memorandum of Understanding”. With these arrangements in place the protection proceeding was dismissed by consent, on December 31st, 2001.
[5] The appellants reconciled in December 2002 and the father resumed living with the mother and their two daughters. The mother maintains that she continued to supervise the father’s contact with the children and did not leave them alone in his care. In early 2002 the father completed a twenty-four week sex offender treatment program with Dr. Joan Boutilier. As was recommended by Dr. Boutilier, he followed with a sex offender maintenance program from which he unilaterally withdrew in March 2005. The parents had separated for the last time in August 2004.
[6] In March 2007 the Agency learned that the father had terminated treatment and that the mother had allowed him to have unsupervised contact with the daughters on two occasions. The Agency prohibited further access pending alternate supervision arrangements.
[7] The current protection application was precipitated by reports to the Agency that the two daughters were living in a dangerous and chaotic situation. At the time of apprehension the mother and daughters were residing with C.B. and his seventeen year old son, to whom I will refer as “the step-son”. The household was in an unsanitary and dishevelled state but the principal concern was the presence of the step-son. He was reported to be temperamental, abusive and violent. Neither his father, C.B., nor the mother could control him and all members of the household feared him. He and the elder daughter had reportedly had a consensual sexual relationship, commencing when she was only fourteen years old while all were living together as a family. This relationship was known to the mother and C.B. After that consensual relationship had ended the step-son had sexually abused the elder daughter, resulting in her pregnancy. She was due to deliver the child in late January 2008.
[8] As the proceeding unfolded all parties agreed that the elder daughter, who had separate legal counsel, would move to live with the maternal aunt, C.F., in Western Canada. The protection proceeding, as it related to her, was discontinued and resolved with an order under the Maintenance and Custody Act, R.S.N.S. 1989, c. 160 providing that she be in the custody of C.F.
[9] The protection hearing continued in relation to the younger daughter and resulted in the findings which are now under appeal. All references to “the child” mean the younger daughter unless otherwise clear from the context.
GROUNDS OF APPEAL
[10] The mother alleges the following errors:
· The judge erred in finding the child was in need of protective services pursuant to s. 22(2)(a), (b), (c) and (d) of the Children and Family Services Act, S.N.S. 1990, c. 5;
· The judge erred in holding the s. 40 hearing more than 90 days after the commencement of the Application;
· The judge erred in not dismissing the Application when the Agency failed to provide timely and adequate disclosure.
[11] Additional issues raised by the father include:
· The judge erred in finding, as against the father, the child is in need of protection pursuant to s. 22(2)(d);
· The judge erred by admitting expert reports which had not been disclosed in a timely manner;
· The judge erred by admitting expert reports containing opinions based upon facts not in evidence or which were beyond the qualifications of the expert;
· The judge erred by placing the onus on the father regarding the s. 40 allegations;
· The judge erred in admitting photographic evidence tendered by the Agency.
STANDARD OF REVIEW
[12] The standard of review is as stated in Children's Aid Society of Cape Breton ‑ Victoria v. A.M., 2005 NSCA 58, 232 N.S.R. (2d) 121, where Cromwell, J.A., writing for the Court stated:
[26] This is an appeal. It is not a retrial on the written record or a chance to second guess the judge's exercise of discretion. The appellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its own exercise of discretion for that of the judge at first instance. This Court is to intervene only if the trial judge erred in legal principle or made a palpable and overriding error in finding the facts. The advantages of the trial judge in appreciating the nuances of the evidence and in weighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellate deference except in the presence of clear and material error: Family and Children's Services of Lunenburg County v. G.D., [2003] N.S.J. No. 416 (Q.L.) (C.A.) at para. 18; Family and Children's Services of Kings County v. B.D. (1999), 177 N.S.R. (2d) 169 (C.A.); Nova Scotia (Minister of Community Services) v. C.B.T. (2002), 207 N.S.R. (2d) 109; Van de Perre v. Edwards, [2001] 2 S.C.R. 1014 at paras. 10‑16.
ANALYSIS
[13] The order on appeal results from the findings at the “protection hearing” which is governed by s. 40 of the Act:
40 (1) Where an application is made to the court to determine whether a child is in need of protective services, the court shall, not later than ninety days after the date of the application, hold a protection hearing and determine whether the child is in need of protective services.
. . .
(4) The court shall determine whether the child is in need of protective services as of the date of the protection hearing and shall, at the conclusion of the protection hearing, state, either in writing or orally on the record, the court's findings of fact and the evidence upon which those findings are based.
(5) Where the court finds that the child is not in need of protective services, the court shall dismiss the application. 1990, c. 5, s. 40.
(Emphasis added)
Disclosure and Exceeding the Time Lines
[14] Considerable detail about the progress of the protection application is necessary to provide context for an analysis of these grounds of appeal.
[15] The protection application was commenced by filing the initiating documents with the Court on July 31, 2007 (Family Court Rule 21.05(1)). Section 40(1) required that the protection hearing be held and the determination made by October 29th, 2007.
[16] At the Interim Hearing held on August 8th, 2007, which was the fifth working day following the commencement of the proceeding (s. 39(1)), Dyer, J.F.C. determined that there were reasonable and probable grounds to believe the two children were in need of protective services and ordered that the children remain in the interim care of the Agency (s. 39(4)). The proceeding was adjourned to August 15th, 2007. On that day Levy, J.F.C. continued the earlier order, adjourning the proceeding to August 29 and directing, inter alia, that by August 24th the respondents file any affidavits in reply to the August 3rd affidavit of Agency worker Jennifer Davidson. On August 29th the appellants, by then represented by counsel, consented to a further continuation of the August 15th order and a pre-trial conference was scheduled for October 1st.
[17] The appellant father had filed an affidavit dated August 24th advising of his intent to seek interim placement of the children with him. Because the children were residing with the mother at the time of apprehension, the allegations contained in Jennifer Davidson’s August 3rd affidavit focussed primarily on the protection concerns arising from the mother’s circumstances. In view of the earlier protection proceeding, the abuse allegations from D.E.B. and the limits on the father’s access with the daughters, the Agency did not anticipate that he would put forward a plan for the children’s care.
[18] Upon learning of the father’s proposal that he have care of the children, the Agency filed a further affidavit from Jennifer Davidson, dated September 28th, detailing not only the additional intended evidence relating to the mother’s care of the children but also the basis upon which it would oppose the children being placed in their father’s care.
[19] At the October pre-trial conference the judge docketed the protection hearing for October 30th and 31st, 2007. This was the first date that the parties and the Court were available. All counsel agreed to the proposed date, fully aware that the timing fell just outside the requirements of s. 40(1).
[20] The Agency planned to seek variation of the interim care order to permit placement of both daughters with the maternal aunt, C.F. This request for variation would be heard in conjunction with the protection application. The judge directed that, if the father intended to pursue his claim for interim care of the children, he must file a formal application to vary which application would also be heard concurrently with the protection application. There was no suggestion by the Agency that the father was not entitled to seek variation of the interim care order. The father’s formal application to vary was prepared and issued by the Court that day, after the pre-trial conference. Through inadvertence it was not served upon counsel for the Agency until October 29th, the day before the protection hearing was to begin.
[21] The protection hearing commenced as scheduled on October 30th. The elder daughter, who was pregnant, now had counsel and was expressing her wish to live with the maternal aunt C.F. The proceeding was adjourned to the next day to afford counsel for the elder daughter an opportunity to confer with her client and the other parties.
[22] When court resumed on October 31st, 2007 a consent order pursuant to the Maintenance and Custody Act was entered placing her in C.F.’s custody. The protection application, as it related to the elder daughter, was conditionally stayed. These unforseen events resolving the elder daughter’s circumstances consumed a significant part of the court time available on October 30th and 31st.
[23] Evidence on the protection application in relation to the younger daughter commenced on October 31st, with three Agency witnesses testifying. Difficulties arose with the disclosure and discovery of third party records which resulted in an adjournment of the proceeding to a further conference on November 8th. I will discuss the disclosure issues in more detail below.
[24] On November 8th, by which time counsel for the appellants confirmed that they had received full disclosure from the Agency, the judge considered dates for the resumption of the protection hearing voicing a concern about the time lines (s. 40(1)). All counsel expressed the view that a further adjournment was not an impediment to continuing.
[25] By the time of that November 8th conference the mother’s circumstances had changed. Due to injuries sustained in a motor vehicle accident and uncertain finances, she was no longer seeking return of the younger daughter and supported placement with the father. The judge noted, and counsel agreed, that the issues before the court had changed to include: (a) whether the child would be at risk if placed in the father’s care, in particular, whether the father posed a substantial risk of sexually assaulting the daughter; and (b) to the extent that the father’s plan of care involved the mother as a part-time caretaker for the daughter, whether that plan of care was in the best interests of the daughter. The Agency clarified that it was seeking a finding in need of protective services regarding the father’s care of the children as well as in relation to the mother’s care.
[26] With the consent of all counsel the protection hearing was scheduled to recommence on January 23rd, 2008. The judge directed that the order adjourning the proceeding include a recital that, given the nature of the evidence, it was in the best interests of the child that the matter be adjourned. That consent order is dated November 8th, 2007.
[27] With that background information, I will discuss the grounds of appeal. The appellants say the Agency did not make timely and adequate disclosure. This, say the appellants, prejudiced their rights to a fair trial. They submit that the judge erred in not dismissing the Agency’s application on account of the late disclosure. The appellants’ complaints relate primarily to the Agency’s failure to fully disclose the evidence upon which it intended to rely in relation to the father’s suitability as a caretaker.
[28] The August 3rd, 2007 affidavit of Jennifer Davidson gave a fulsome account of the Agency’s intended evidence in the proceeding and the sources of that evidence, as well as providing a background to the allegations against the mother. As indicated above, the Agency first learned that the father was pursuing care of the children from his affidavit of August 24th, 2007. Ms. Davidson’s September 28th affidavit outlined the Agency’s protection concerns regarding the father, referring in some detail to the circumstances of the prior protection proceeding arising out of D.E.B.’s allegation of sexual abuse.
[29] The father says, as of the October 1st pre-trial conference, he understood that the only expert witness the Agency would be calling was Mikaela Vidmar-Perrins who on April 18th, 2007 had clinically assessed the father’s potential readmission to a sexual offender treatment program. He was taken by surprise when advised on October 30th and 31st that the Agency would be calling two additional experts and other witnesses. The two experts were those involved in the father’s sex offender assessment and treatment in 2001 and 2002, arising from D.E.B.’s allegation of abuse. In its defence, the Agency said that it was only on October 29th when it received formal notice of the father’s application to seek interim care of the children, that it focussed on the extent of the evidence it would require to support a need of protection finding in relation to the father. Until that time the Agency was not certain the father was advancing a plan. It is acknowledged that the Agency did not know until October 29th that the father had formalized his application on October 1st.
[30] The appellants placed these concerns about the delayed disclosure before the judge at the hearing on October 30th and 31st. It bears noting that neither appellant asked the judge to dismiss the proceeding on account of the late disclosure. While acknowledging the parents’ frustration with the disclosure process, the judge opined that in addressing these concerns he must keep the child’s best interests in the forefront. He concluded it was in the child’s interests to make certain that the evidence relevant to her welfare was before the court, while at the same time ensuring that the parents had a proper opportunity to respond. Accordingly, he determined that it was appropriate to further adjourn the proceeding to a conference on November 8th at which time he would address any remaining disclosure issues. As stated above, at that conference, the appellants’ counsel confirmed that full disclosure had been received.
[31] The judge’s decision to adjourn the proceeding was a discretionary one. This Court will interfere with an interlocutory, discretionary order only where wrong principles of law have been applied or a patent injustice will result (Gateway Realty Ltd. v. Arton Holdings Ltd. and LaHave Developments Ltd. (1990), 96 N.S.R. (2d) 82).
[32] I am not persuaded that the judge erred in exercising his discretion to continue the proceeding. Between August and October the protection proceeding had mutated in a number of unforseen ways: the elder daughter’s circumstances were resolved on consent, which had consumed a substantial part of the two days scheduled for the hearing; the mother abandoned her claim to care of the children; the father, whose access with the children had been suspended, was now seeking care; and the Agency did not receive notice of the father’s application to vary until the day before the hearings were to begin.
[33] The reports which the Agency planned to put into evidence emanated from the prior protection application resulting from D.E.B.’s alleged sexual abuse and were not new material prepared for this proceeding. They provided details of the father’s participation in the sexual offender treatment and maintenance programs and outlined the disclosures that he had made to the therapists. The evidence of the additional witnesses was disclosed within Jennifer Davidson’s two affidavits, although the Agency, admittedly through oversight, had not advised counsel that it intended to call those witnesses. Even had full disclosure been made in advance of October 30th, the hearing could not have been completed within the two days scheduled. An adjournment of the protection proceeding was inevitable and not necessitated by the timing of the Agency’s disclosure of the additional witnesses or the reports.
[34] There was and is no suggestion that the Agency was intentionally withholding material evidence. The judge did not, in my view, err in concluding all relevant evidence should be before the court and that the appellants would have an adequate opportunity to prepare for the additional witnesses during an adjournment.
[35] Although finding no error in this regard, I would observe that the Agency could have acted with greater dispatch in disclosing to the parties its full list of potential witnesses and any related expert reports. At least from August 24th on the Agency was aware that the father was contesting the protection finding and would likely be putting himself forward as a potential caretaker, although his formal application was not provided to the Agency until October 29th. Unfortunately due to the tight statutory time lines, compared to ordinary civil litigation, child protection cases proceed at warp speed. This puts tremendous pressure on all counsel to address volumes of information in unreasonably short time frames which may be extremely difficult to meet. Notwithstanding this reality, disclosure at the earliest opportunity is in all parties’ interests and may promote early resolution or, at least, a narrowing of the issues.
[36] The appellants also say that, because the protection hearing occurred outside the statutory 90 day time frame (s. 40(1)), the Court lost jurisdiction and the proceeding is a nullity. I refer again to the factual background set out above.
[37] In Children's Aid Society and Family Services of Colchester County v. H.W. (1997), 155 N.S.R. (2d) 334, [1996] N.S.J. No. 511 (Q.L.)(C.A. ), this Court concluded that the time lines stipulated in the Act are not mandatory, but strongly directory. Freeman, J.A. wrote for the Court (at N.S.R., p. 340):
[28] In my view, on a proper interpretation of the time limits contained in the Children and Family Services Act, the object of eliminating the excessive time delays experienced under the previous legislation can best be attained not at the expense of the paramount consideration but by giving the best interests of children their fullest and broadest effect.
[29] What Judge Levy has pointed out, and what this appeal illustrates, is that the time limits, which give effect to the concern expressed in the Preamble, are sometimes in conflict with the best interests of the child. When that occurs, the legislation must be given a construction consistent with the best interest of the child. In my view the ordinary meaning of the legislation creating the time limits cannot be ascertained from looking at the sections containing those specific provisions standing alone; they must be read in light of the Preamble and s. 2.
[30] The alternative, loss of jurisdiction which nullifies all proceedings prior to the infringement of the time limit, may not only be contrary to the best interests of the child but to the concern addressed in the Preamble, and to the intent of the time limits themselves. Nullification after a child is found in need of protection either deprives a child of that protection or subjects it to the delays inherent in starting proceedings all over again from the beginning. Child protection proceedings become a game of "snakes and ladders".
[31] Because their meaning varies with their context from case to case, depending on whether there is a conflict with s. 2, I would consider the time limits provisions to be not mandatory but strongly directory, to be obeyed to the fullest extent possible consistent with the best interests of the child. An error in extending a time limit to serve the best interests of a child would then be an error of law, subject to appeal, but would not result in the loss of jurisdiction nullifying proceedings. It is neither logical nor pragmatic that a court can be wrong as to a child's best interests and retain jurisdiction but, if it is wrong respecting a time limit, it is shorn of jurisdiction.
(Emphasis added)
[38] Freeman, J.A. expressly addressed the extension of the s. 40 time limit (at N.S.R. 342):
[35] In my view jurisdiction is preserved by a finding of fact that proceeding beyond the time limits set out in the Act is in the best interest of the children. The threshold is necessarily high respecting s. 41: the mere convenience of court or counsel will not suffice. With respect to a s. 40 protection hearing I would consider the principle to be the same but the evidentiary burden to be much heavier. The consent of counsel is not a governing factor, but may be relevant in assessing the interests of the child. Consent cannot create jurisdiction beyond the statutory time limits in the absence of a finding as to the best interests of the child, and where there is such a finding the consent of counsel is not necessary.
(Emphasis added)
[39] The status of the statutory time limits is nicely summarized by Cromwell, J.A., writing for the Court, in Children’s Aid Society of Cape Breton-Victoria v. A.M., supra, at para. 32:
32 To summarize my conclusions:
1. Surpassing of a time limit in the Act to determine the child's best interests does not result in the loss of jurisdiction: H.W. and B.F. However, as noted in B.F., this principle does not apply to time limits which govern the contents of the order after that determination is made: B.F. at para. 58.
2. Time limits should not be extended in order to permit a determination to be made of the child's best interests unless, at the time they are extended, the judge determines that it is in the best interests of the child to do so: H.W. at para. 41.
3. Such extensions should not be open‑ended but rather strictly constrained in accordance with the principles in the Act: H.W. at para. 41.
4. Failure to observe the approach set out in points 2 or 3 above is an error of law, but will not lead automatically to interference with the judge's ultimate determination. Intervention will follow only when it is shown, according to the applicable standard of appellate review, that the judge's decision to proceed, notwithstanding the expiration of the time limit, was not in the children's best interests.
. . .
[40] All parties were aware that the 90 day deadline was October 29th, 2007 yet at the October 1st pre-trial agreed to the October 30th and 31st hearing dates. At that time counsel for the father advised the judge that he had instructions to consent to the extension of the time lines and confirmed his view that the extension was in the best interests of the child. Counsel for the mother observed that she did not anticipate that the extension would be an issue. There was informal discussion of the best interests of the child and implicit agreement by all that this minimal extension of the 90 day period was in the child’s best interests. The judge advised counsel that in the month of October, he was obliged to hold hearings on a number of child protection cases. Indeed, in order to free up the October 30th and 31st dates, to adhere as closely as possible to the statutory time frames, he would be cancelling two days of scheduled hearings in another matter. From the tenor of the exchange at that conference, it is clear that all concerned viewed the commencement of the protection hearing on October 30th as substantially complying with the intent of the Act.
[41] When, on October 31st, 2007, it became necessary to adjourn the protection hearing the judge expressly considered the effect of a further adjournment on the child. As reviewed above, he concluded that it was in her interests to allow time for all relevant evidence to be put before the court in a way that ensured that the parents had an opportunity to defend and to respond to the Agency’s case. In order to minimize further delay and facilitate disclosure the judge adjourned the hearing to a case conference on November 8th. While counsel for the parents were clearly frustrated with what they viewed as delayed disclosure by the Agency, neither moved that the proceeding be dismissed. Counsel for the father raised the possibility of curing the breach of the time lines by dismissing and recommencing the proceeding. The judge did not consider that option to be appropriate.
[42] The father says there was no evidence before the court at that time which would support the judge’s conclusion that the adjournment of the protection hearing to January 23rd, 2008 was in the child’s best interests. I would disagree. The following uncontradicted evidence, drawn exclusively from the affidavits filed by the appellants, was before the judge:
· The mother, in whose care the child was at the time of apprehension, was not in a position due to health and financial circumstances, to resume her care.
· The mother supported the father’s plan to have care of the child with the mother as part time caregiver when the father was unavailable.
· The mother’s oldest daughter, D.E.B., maintained she had been sexually abused by the appellant father while the family was living together.
· As a result of that allegation the father, for years, had exercised only supervised access.
· Although the father denied any sexual impropriety with D.E.B., he had completed a twenty-four week sex offender treatment program and followed with a maintenance program.
· The father’s supervised access had been terminated by the Agency when he unilaterally left the sexual offender maintenance program.
· The elder daughter, while in the mother’s care and living with her, had been made pregnant by the mother’s stepson.
· The elder daughter alleged that the child was the product of a rape.
· The father was angered about the events that had transpired while the girls were in their mother’s care, which he learned about through the protection application, but maintained he was powerless to intervene due to the restrictions on his access.
[43] Had the judge dismissed the proceeding on October 31st, as the father now suggests the judge should have done, the Court would have no continuing jurisdiction over the child whose care would have fallen to the father in view of the mother’s inability, for health and financial reasons, to resume de facto custody. In view of the unresolved sexual abuse allegations, re-apprehension by the Agency would be inevitable. This would occasion even greater delay with a proceeding commencing again, from the beginning. While the judge did not articulate the rationale behind his conclusion that adjournment was in the child’s best interests, there was a compelling evidentiary base for his decision to adjourn. Indeed, this was recognized by counsel for the parents who neither opposed the adjournment nor suggested that the judge had lost jurisdiction.
[44] Although the judge erred by not addressing the child’s best interests in commencing the protection hearing after the expiration of the 90 day period and by subsequently failing to articulate the basis for his conclusion that the adjournment was in the child’s best interests, I would find that the steps taken by the judge were clearly consistent with the child’s best interests. This is not an appropriate case for appellate intervention. (Family and Children’s Services of Kings v. H.W.T. (1997), 156 N.S.R. (2d) 237, [1996] N.S.J. No. 521 (Q.L.)(C.A.), at para. 7 and Children's Aid Society and Family Services of Colchester County v. H.W., supra).
Need of Protection - Mother
[45] The subsections of the Act relevant to this ground are:
22 (1) In this Section, "substantial risk" means a real chance of danger that is apparent on the evidence.
(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 to supervise and protect the child adequately;
(b) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (a);
(c) the child has been sexually abused by a parent or guardian of the child, or by another person where a parent or guardian of the child knows or should know of the possibility of sexual abuse and fails to protect the child;
(d) there is a substantial risk that the child will be sexually abused as described in clause (c);
. . .
[46] The judge determined that the need of protection allegations (s. 22(2) (a), (b), (c) and (d)) relating to the mother’s care of the children were made out - that the child had suffered physical harm and sexual abuse and that there was a substantial risk that she will suffer physical harm or sexual abuse.
[47] The mother says there was no admissible evidence before the courts that the child had actually suffered physical harm or sexual abuse, nor evidence of a “substantial risk” that she will suffer either if left in her care. It is the mother’s submission that the trial judge’s findings are rooted in inadmissible hearsay evidence rather then based upon the admissible evidence before him. The mother’s complaint of hearsay relates primarily to the contents of the affidavits of Jennifer Davidson.
[48] The August 3rd and September 28th affidavits of the Agency case worker, Jennifer Davidson, contain a substantial amount of information that is not within Ms. Davidson’s personal knowledge. Where not with her knowledge, it is attributed to a named source.
[49] Pursuant to s. 38(1) of the Act an agency is required to “make full, adequate and timely disclosure, to a parent or guardian and to any other party, of the allegations, intended evidence and orders sought in a proceeding”.
[50] The Agency says the affidavits serve two purposes: (i) together they fulfill the s. 38(1) disclosure requirements; and, (ii) the August 3rd affidavit provides “credible and trustworthy evidence” for the five day hearing (s. 38(1)).
[51] Appellants’ counsel objected to the hearsay contained in the affidavits. The judge was alive to the issue and expressed his own concern. Rather than expend the limited time available for the protection hearing editing the affidavits, he advised that he would consider the information in the affidavits only to the extent that it was confirmed by vive voce evidence from the named source. Appellants’ counsel did not object to this process.
[52] The Agency called eleven witnesses at the hearing. The mother and father also testified. Subject to the exception I discuss below, the vive voce evidence proffered at the protection hearing supports the judge’s findings. I am not persuaded that he relied upon inadmissible evidence in reaching his conclusions.
[53] I will briefly review the evidence. Ms. Davidson testified that in June, 2007 the Annapolis Agency had a referral from Allister Graham, the step-son’s probation officer who had expressed his concern that the two daughters were at risk of sexual harm from the step-son. He reported that the step-son was staying with the family despite a condition of his probation that he not have contact with either daughter. In a follow-up contact with the Annapolis Agency, Ms. Davidson learned that that Agency had closed the file on July 10th, 2007 having reached an agreement with the mother that the step-son would have no contact with the daughters.
[54] A key witness at the protection hearing was C.F., the child’s maternal aunt who lives in Western Canada. She had come to Nova Scotia on July 23rd, 2007 to assist the mother as she recovered from knee surgery. C.F. arrived to find the mother’s home insect infested and strewn with garbage. The power had been disconnected. In her testimony she described a dysfunctional family situation with all members of the household catering to the temperamental demands of the step-son. The mother and C.B. so distrusted the step-son that they slept with their valuables to keep them safe from him. C.F. testified that the mother and C.B. were selling drugs in the presence of the children; the step-son used marihuana in the home in the adults’ presence; he physically abused his father; and the daughters feared him. C.F. perceived the situation to be so dangerous for the daughters she demanded that the mother either take the children to a women’s shelter for safety or permit her to take them to her home in Western Canada. Fearing that she would lose her child support if she allowed the daughters to live with C.F., the mother chose to go to the shelter. Unable to effect any satisfactory change in the situation, C.F. contacted the Agency on July 31st, 2007 to report that the mother was not protecting the children from sexual abuse.
[55] Brenda Wood ran the women’s shelter where the mother and her daughters took refuge on July 29th, 2007. She testified that, on intake, the mother had identified the step-son as the abuser, telling staff that he was violent and punched holes in the walls of their home. The mother further disclosed to staff that the step-son had sexually abused the elder daughter resulting in her pregnancy. The mother maintained contact with C.B. while at the shelter and, on one occasion, C.B. and the step-son arrived at the shelter intending to take the elder daughter for a drive. Shelter staff contacted the police.
[56] According to probation officer Allister Graham’s evidence, the step-son has an escalating criminal record dating back to 2004. He is impulsive, immature, manipulative, self destructive, self indulgent and has poor judgment. He has suffered significant trauma in his own life including sexual abuse.
[57] Mr. Graham testified that the mother was bringing the two daughters to visit the step-son at the correctional centre, notwithstanding that he had been investigated for an allegation of sexual misconduct with the younger daughter.
[58] In January 2007, with the step-son’s release from the correctional facility anticipated on February 16th, Mr. Graham held a case conference with the mother, C.B. and others. The participants were proposing that the step-son be permitted to reside at the mother’s home upon release. At that time the mother and C.B. inquired as to whether the step-son could have contact with the elder daughter as they were “boyfriend and girlfriend”.
[59] Tanya Billard, an agent with the Annapolis Agency testified that on February 12th, 2007 she received a telephone call from the mother who was incensed that the Agency would not allow contact between the step-son and the elder daughter. It was the mother’s position that, because his alleged sexual misconduct occurred with the younger daughter, there was no reason to prevent contact with the elder daughter.
[60] Allister Graham once more contacted the Annapolis Agency on June 21st, 2007 upon learning that the step-son, who had again been incarcerated for breaching his probation, when released had stayed at the mother’s home, notwithstanding the condition that he not have contact with the daughters. The mother advised him that she ensured her daughters were either out of the house or supervised when the step-son was present. Ultimately, the step-son was returned to secure custody in August 2007 as a result of breaching the condition that he have no contact with the daughters.
[61] I am satisfied that the above evidence amply supports the judge’s findings pursuant to s. 22(2)(b) and (d) ‑ there was a substantial risk that the child would suffer physical harm or sexual abuse if in her mother’s care.
[62] Unfortunately, the judge’s blanket ruling against the receipt of hearsay evidence, which may have been expedient in the circumstances, left unresolved the status of the children’s out-of-court statements, as recounted in Jennifer Davidson’s affidavit. The judge did not address s. 96(3)(a) of the Act, which permits, in certain circumstances, the receipt of children’s out-of-court statements nor did he consider the principled exception to the hearsay rule. This, in my view, impacted upon the protection findings available to the judge. While there was additional evidence before the court which, if admitted, could have supported findings under s. 22(2)(a) and (c), the judge does not indicate that the evidence was admissible. We should, therefore, assess his conclusion in light of the record without that evidence. In my view, on this basis, the record could not reasonably support his conclusion that the younger daughter had suffered physical or sexual abuse while in her mother’s care.
Need of Protection - Father
[63] The father says the judge erred in finding that there was a substantial risk that the child would be sexually abused by him or, if he knew of the possibility of sexual abuse by another, that he would fail to protect her (s. 22(2)(d)).
[64] As referenced above, the mother’s oldest daughter, D.E.B., not the biological child of the father, alleged that the father had sexually abused her on a number of occasions, when she was twelve or thirteen years old. A description of the alleged abuse is contained in a November 2000 report from psychologist Debbie Sutherland:
According to collateral information, [D.E.B.] claims that [the father] started to abuse her in June 1999, while her mother, [M.J.B.] was in [the West] visiting her son. She said that after her mother returned from [the West], [the father] would touch her vagina while he was tucking her in bed and while her mother was either working on the computer in the basement or when she was out of the house. [D.E.B.] said that [the father] continued to abuse her until she asked him to stop in January, 2000. She said he started again in March 2000. [D.E.B.] disclosed to her mother that [the father] was sexually abusing in the latter part of the month of March.
[D.E.B.] reported that [the father] would touch and rub her vagina, and on some occasions, would try to insert his finger inside her vagina, while she was in bed. [D.E.B.] stated that on one occasion, [the father] touched and rubbed her vagina then masturbated himself until he ejaculated on her leg, while she was sitting at the computer in the basement. She said that [the father] wiped her leg off with a Kleenex and threw the Kleenex in the garbage.
[The mother] stated that she saw [the father] leave [D.E.B.]’s bedroom with an erection one night after he had tucked her in. She said that he explained he had been giving [D.E.B.] a backrub when he realized he had an erection, he immediately left the room. [The mother] said she told [the father] that the back rubs must stop.
[The mother] also reported that [the father] would often wrestle and “playfight” with [D.E.B.] and she noticed on a number of occasions that his hand would slip and touch her breasts or his hand would go between [D.E.B.]’s legs. [The mother] stated that he always pulled his hand back immediately when this would happen.
[The mother] reported that after she returned home from [the West], she noticed that [the father] was taking an increasingly longer time to tuck in the children. She said she assumed that the children wanted to spend more time with [the father]. [The mother] stated that [the father] had mentioned to her that [D.E.B.] was taking more time to get into bed because she often asked for a drink or more hugs and wanted him to stay longer.
There is one other description of behaviour by [the mother] that is important. [The mother] reported that when [D.E.B.] was three years old, [the father] would have an erection while she was “wriggling” on his lap. [The father] admitted that he would feel sexually aroused when [D.E.B.] “wriggled” on his lap when she was young.
[65] According to the record, the date that the abuse is alleged to have commenced is more likely 1998 with D.E.B.’s disclosure occurring in 1999 not 2000.
[66] D.E.B. did not testify at the hearing but it was acknowledged by the father and mother that she had accused the father of sexual abuse. Although D.E.B. now enjoys an amicable relationship with the father and supported his plan that he have care of the younger child, she has never retracted the allegations of abuse.
[67] D.E.B.’s disclosure of the abuse had resulted in a protection hearing, which, as discussed above, was dismissed on condition that the father would undergo a psychosexual assessment and undertake any recommended treatment. As a result, he completed a twenty-four week sexual offender treatment program followed by a maintenance program.
[68] Dr. Joan Boutilier, who testified at the current proceeding, was in charge of the treatment program and met with both the mother and the father over the course of almost two years. It is her evidence that, on a number of occasions, the father acknowledged his sexual deviancy and, more than once, said of his criminal trial for the sexual abuse of D.E.B. - “I was acquitted but I did it.” He told Dr. Boutilier he had touched D.E.B.’s breasts and vagina and put himself in situations where he would “accidentally” allow his hands to wander over her body. He admitted to sexual fantasies with pubescent girls as well as fantasies of coercive sexual behaviour. He told the doctor he sought out sexual encounters with teenage prostitutes. Dr. Boutilier testified that, as is common with such clients, he vacillated, week to week, between acknowledging the abuse, claiming it was an accident or blaming the victim. Toward the latter part of her work with him - from early 2002 to the summer of 2003 - he was consistent in acknowledging that he had molested D.E.B.
[69] Many of his admissions were made in a group setting. One of the therapeutic tools was role playing within the group. Dr. Boutilier recalled the father acting out two scenarios. In one he was standing in the hallway, waiting for D.E.B. to come out of the shower wrapped in a towel and in the other he was touching her inappropriately as she worked at the computer. In some of his written homework, Dr. Boutilier noted that the father was writing pornography about girls in their young teens.
[70] Given the nature of his disclosures and exchanges with Dr. Boutilier and the group during the therapy, the father was able to convince Dr. Boutilier that he had a problem with sexual deviancy and had abused D.E.B.
[71] There was evidence as well from Debbie Sutherland, who had prepared the November 2000 psychological report. Although the father denied the abuse in his sessions with her, he admitted that he had sexual thoughts about D.E.B. from the time she was eleven or twelve years old. Ms. Sutherland had viewed the material that had been seized from the father’s files preparatory to the criminal trial. This included pictures of pubescent girls performing oral sex on adult men; digests of fathers having sex with their daughters; and handwritten stories about sex between a man and female members of his family, including his daughters and girls as young as eleven years old.
[72] After learning of his unilateral withdrawal from Dr. Boutilier’s maintenance program the Agency required that the father meet with clinical psychologist Mikaela Vidmar-Perrins to explore the possibility of his admission to her maintenance program. Dr. Vidmar-Perrins testified at the hearing. She met with the father on April 18th, 2007. At that meeting the father denied that he had abused D.E.B. but acknowledged that he had fantasized about her when she was about twelve years old. He further acknowledged that, for his own entertainment, he wrote about sexual contact which included father/daughter incest and child abuse scenarios.
[73] It was the father’s evidence at the protection hearing that he had not abused D.E.B. but felt forced to make false admissions and to participate in the treatment and maintenance programs as the only way to maintain contact with his daughters.
[74] He testified that he had stopped his sexually explicit writings, which he characterized as “escapist fantasy”, in 1994. One of his written works was seized by the police in relation to the investigation of D.E.B.’s abuse allegation. The father maintained that the writing dated back to 1994. However, on cross-examination it was established that a portion of that manuscript had been plagiarized from a book which was not published until 1998. In response, the father revised his evidence stating that the writing was an ongoing work.
[75] At the hearing he admitted to having “one or two” sexual thoughts about D.E.B. while she was living with them, and, on one occasion, having an erection while rubbing her back, but denied any sexual abuse.
[76] The problem with the father’s evidence was obvious to the judge. If he is a sufficiently convincing liar such that he can deceive several experts in the diagnosis and treatment of sexual deviance and maintain that charade over a period of years in a therapeutic setting, his testimonial credibility before the court is fatally compromised. If he did assault D.E.B. but is now denying that such occurred, he is a truly dangerous individual.
[77] The Act defines “substantial risk” to mean a real chance of danger that is apparent on the evidence (s. 22(1)). In the context here, it is the real chance of sexual abuse that must be proved to the civil standard. That future sexual abuse will actually occur need not be established on a balance of probabilities (B.S. v. British Columbia (Director of Child, Family and Community Services) (1998), 160 D.L.R. (4th) 264, [1998] B.C.J. No. 1085 (Q.L.) (C.A.) at paras. 26 to 30).
[78] The judge did not find the father to be a credible witness. In the face of his admissions to the various therapists and the fact that he was able to continue to allegedly “deceive” these trained professionals over a lengthy period by providing graphic detail of his sexual proclivities and acting out his deviance in group settings, the judge concluded that his current denials could not be believed.
[79] The father further says that, as there was no evidence that he had ever acted in a sexually explicit way toward his two biological daughters, there was no basis for the court to make a need of protection finding pursuant to s. 22(2)(d). The father’s unsupervised access to the children had ended with D.E.B.’s allegation in 1999, at which time the elder daughter was only eight and the younger five years old. According to his own disclosures to the therapists, his attraction is to pubescent females. He had not had unsupervised access with his daughters as they matured sexually and therefore no opportunity to abuse them.
[80] On the evidence before him, I would find that the judge did not err in concluding that there was a substantial risk that the younger daughter would be sexually abused by the father or while in his care.
[81] Nor do I accept the father’s submissions that the judge reversed the burden of proof. The Agency presented compelling evidence that the father had repeatedly admitted to abusing D.E.B. while she was in his care, that he was sexually attracted to pubescent females and that he fantasized and wrote about sexually deviant scenarios involving young women. It was in that context that the judge commented:
. . . he now has to persuade me, and I think the ball is in his court given the bulk of the evidence, he now has to persuade me that that was then and this is now.
(Emphasis added)
[82] In challenging the trial judge’s protection finding the father submits that the judge erred by admitting expert reports containing opinions based upon facts not in evidence or which were beyond the qualifications of the expert. This allegation is not developed in the father’s factum nor was it addressed in oral argument. The father consented to Dr. Joan Boutilier’s expert qualifications and did not complain at trial that her evidence strayed beyond that expertise. The use of psychologist Debbie Sutherland’s report was admitted by consent but only for the factual assertions contained within it, not as an expert’s report. Dr. Mikaela Vidmar-Perrin’s opinion evidence was confined to the criteria for admission to a sexual offender maintenance program and her opinion that the father did not meet that criteria. In summary, the father’s complaint that the expert evidence was misused is not borne out on the record.
[83] The father has further alleged that the judge erred in admitting certain photographic evidence. There was confusion over whether the pornographic pictures presented at trial were, in fact, the same pictures seized from the father’s files. I am not persuaded that the judge admitted those pictures as exhibits or attributed their origin to the father or that the pictures were material to his findings.
Other Issues Raised by the Agency
[84] The Agency asks this Court to address two issues that were not directly raised before the trial judge: First is the question of against whom the finding of protection is made. It is the Agency’s position that the judge was in error when he concluded that, notwithstanding the proof of the allegations in relation to the mother’s care of the children, the children would not be in need of protective services if the father was found to be a suitable caretaker. The Agency says that pursuant to s. 39(4)(a) and (b) of the Act, the Court’s jurisdiction is limited to returning the children to the care of the parent or guardian from whom the child was apprehended and that placement with another parent or guardian is not authorized by statute. The child is, therefore, in need of protection if the allegations against the parent or guardian having care at the time of apprehension are made out.
[85] As the matter unfolded the Agency sought a need of protective services finding in relation to the father’s care of the children. Consequently, while the judge mused that he might find the children not in need of protection if the father proved to be a suitable caretaker, he was not called upon to adjudicate the issue. In my view, any direction from this Court on that issue should not occur in the absence of a determination by the trial judge.
[86] The second issue about which the Agency seeks clarification is the fact that the judge permitted the father to bring a so-called “variation application” under s. 39(9) of the Act in conjunction with the protection hearing. The Agency says that the question of the children’s need for protective services should have been considered before the issue of placement of the children. The father was not a person entitled to make an ‘application to vary’ because s. 39(4) of the Act limits the Court to “returning” a child to the parent or guardian from whom she was apprehended. Any claim by the father for care of the children should have been adjudicated, says the Agency, at the disposition stage. The Agency did not object to the father bringing the application to vary. Consequently, the judge was not required to adjudicate this issue. It is not appropriate for this Court to “provide guidance” in the absence of a contest at the hearing.
DISPOSITION
[87] I would allow the appeal in relation only to the s. 22(2)(a) and (c) findings regarding the mother, which I conclude were not borne out on the record. Those findings should be set aside. In all other respects the appeal is dismissed. There shall be no costs.
Bateman, J.A.
Concurred in:
MacDonald, C.J.N.S.
Oland, J.A.