IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Children’s Aid Society of Cape Breton - Victoria v. A., 2005 NSSF 18
Date: 20050222
Docket: CFSA 28568
Registry: Sydney
Between:
The Children’s Aid Society of Cape Breton - Victoria
Applicant
v.
H.A. and G.A., Sr.
Respondents
Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on November 13, 2008.
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:
“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 relative of the child.”
Judge: The Honourable Justice Walter R.E. Goodfellow
Heard: December 8, 2004 in Sydney, Nova Scotia
Counsel: Darlene MacRury for the Children’s Aid Society
Douglas P. MacKinlay for the Respondent, G.A., Sr.
Francis X. Maloney for the Respondent, H.A.,
(no submission)
By the Court:
BACKGROUND:
[1] By decision and subsequent Order of Justice Darryl Wilson, August 12, 2003, four children of H.A. and G.A. Sr. were placed in the permanent care and custody of The Children’s Aid Society.
[2] One of the children is A.D..
[3] During the hearings before Justice Wilson, H.A. became pregnant and gave birth to K.A., born [in 2002]. Initially, G.A. Sr. was uncertain if he was the father of the child, K.A. and the court recommended DNA testing which established that he is, in fact, the father of K.A.. The court began a disposition hearing regarding the child, K.A., December 6, 2004. At the request of The Children’s Aid Society a series of telephone conversations between H.A. and her daughter, A.D. were taped and are sought to be entered into evidence in the disposition hearing relating to the child, K.A..
[4] In July and August 2004, the child A.D. was residing in a Children’s Aid Society placement in the residence of C.I. in [...], Nova Scotia and C.I. had a taping system attached to her residential telephone such that all incoming and outgoing calls were taped.
[5] The CAS received from C.I. three (3) taped conversations which were recorded on July 10, July 11 and August 8, 2004. The CAS provided the tapes to the Cape Breton Regional Police for investigation and as of this date no charges have been filed.
[6] The CAS has applied to enter into evidence in this disposition proceeding relating to K.A. the tape contents as an indication of the parenting style and ability of H.A. and also G.A., Sr. who the CAS states is also referred to on the tapes in background conversation with H.A. only.
ISSUE - ARE THE TAPES ADMISSIBLE?
LEGISLATION
[7] The Children and Family Services Act 1990, c. 5, s. 1 provided:
2 (1) The purpose of this Act is to protect children from harm, promote the integrity of the family and assure the best interests of children.
Paramount consideration
(2) In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child. ...
Functions of agency
9 The functions of an agency are to ...
(d) investigate allegations or evidence that children may be in need of protective services; ...
(g) provide care for children in its care or care and custody pursuant to this Act; ...
S. 47 (1)
Where the Court makes an Order for Permanent Care and Custody pursuant to clause (f) of subsection (1) of Section 42, the Agency is the legal guardian of the child and as such has all the rights, powers and responsibilities of a parent or guardian for the child’s care and custody.
[8] Section 184 of the Criminal Code of Canada does make provisions with respect to the interception of private communications, wherein it states as follows:
Interception of Communications
184. (1) Interception - Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(2) Saving provision - Subsection (1) does not apply to
(a) a person who has the consent to interpret, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it ...
CASE LAW
[9] Reddick v. Reddick, 14 C.P.C. (4th) 175 (Ont. Gen. Div.) - In the context of a custody application the father sought to introduce into evidence four telephone conversations he taped between the mother and the children of the marriage. On the voir dire Bell, J. concluded at para. 9:
. . . I note that this is a civil case not involving any governmental action of any kind. Further, in my view, each custody case of this nature, involving, as it does, a consideration of the children’s best interests, must be decided on its particular facts.
Bell, J. concluded at para. 24:
. . . I conclude that the evidence of tape-recorded conversations between the mother and the children which is sought to be introduced is relevant, reliable and probative,. In the particular circumstances of this case, the fact that the evidence goes to such important issues of parental alienation and inappropriate pressure on the children leads to the conclusion that it should be admitted in the best interests of the children. That would outweigh any perceived unfairness relating to the lack of early disclosure and the unavailability of some of the earlier tapes, the court’s repugnance of illegal conduct and the general need to discourage the taping of private communications between parent and child. . . .
B. (G. v. B. (D.), 1998 WL 1729827 (Ont. Master) - This case also concluded that taped conversations may be admitted if relevant, reliable, probative and in the best interests of children.
Toope v. Toope, (2000) Newfoundland Unified Family Court, 8 R.F.L. (5th) 446, 193 Nfld. & P.E.I.R. 313 - This case concluded the child’s best interests outweighed any procedural unfairness and normal disapproval of illegally taped conversations without knowledge or consent.
[10] Additional cases which considered the issue are:
Sharpe v. Sharpe (2002), 28 R.F.L. (5th) 425
Fattali v. Fattali (1996), 22 R.F.L. (4th) 159
CONCLUSION/RESULT
[11] The information contained in the tapes is relevant as to the issue of the best interests of the infant child, K.A.. There is no question raised as to the reliability of the tapes and their probative value is significant in that it casts some light on the attitude and parental style and abilities of H.A. and to a more limited extent, G.A. Sr..
[12] Accordingly, the tapes are admitted in evidence. In addition to the foregoing reasons I would hold that where The Children’s Aid Society is the legal guardian of A.D. it has the legal capacity to consent to the recording of the telephone conversations. We have not only the consent of the owner of the telephone communication line but also the consent by legal guardian of one of the parties to the conversations that were taped.
J.