Territorial Court
Decision Information
Transcript of the Ruling on Application
Decision Content
T.G and C.G. (Re), 2020 NWTTC 17 T-2-CP-2016-000001
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF the Child and Family Services Act,
S.N.W.T., 1997, c. 13, as amended
AND IN THE MATTER OF the children,
G., T.
Born: October, 2010
G., C.
Born: May, 2013
Apprehended: September 26, 2020
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Transcript of the Ruling on Application delivered by the Honourable Judge D.F. Molloy, sitting in Yellowknife, in the Northwest Territories, on the 30th day of October, 2020.
________________________________________________________
APPEARANCES:
A. Thibodeau: Counsel for the Director
S. Dhindsa: Counsel for the Father
S. Uwera: French Language Interpreter
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There is a ban on the publication, broadcast or transmission of any information
pursuant to s. 87 of the Child and Family Services Act.
I N D E X
PAGE
RULINGS, REASONS
Ruling on application 3
FRIDAY, OCTOBER 30, 2020
THE COURT: All right. Let us try it again. Mr.G., I understand you are on the line?
R.G.: Yes, I am.
THE COURT: All right. And you can hear me fine?
R.G.: Yeah, yeah.
THE COURT: And I understand we also have an interpreter on the line?
THE INTERPRETER: Yes, I am here.
THE COURT: All right. Could you identify yourself for the record, please?
THE INTERPRETER: Yes, my name is Sonya Uwera.
THE COURT: Thank you. I am not sure how this is going to work, Mr. G., in the sense of you will be hearing what the interpreter says over your phone, your phone line, but if at any point you are having difficulty hearing either me or the interpreter, I would like you to bring it to my attention immediately.
R.G.: All right. Sounds good.
THE COURT: And Madam Interpreter, I have to deliver a decision. How do you prefer we go about it in terms of, do you want to just tell me when you need me to stop, sort of make usable chunks for you to be able to interpret for Mr. G.?
THE INTERPRETER: Yes, exactly, because I also want to ask exactly how the client speaks French because it's in English, correct?
THE COURT: So I will be giving my decision in English because unfortunately I only speak English you will need to translate what I say to Mr. G. in French. Mr. G., in terms of the interpreter's question, is there anything unique or particular about your level of French that she needs to know?
THE COURT: Hello, Mr. G.?
R.G.: Yeah.
THE COURT: Yes, is there anything particular or unique about your dialect or your French that the interpreter needs to know about?
R.G.: Yeah, because I don't understand all the words and the interpreter will be there to explain to me.
THE COURT: Okay.
THE INTERPRETER: Okay. What I meant, is it Quebecois French or is it French French that you speak?
R.G.: French French.
THE INTERPRETER: Then I will listen to the judge and then I will stop him when it's going to be a longer sentence, then I will stop him and then I will translate directly.
R.G.: Okay. And like I said, if we get noise or something because my kids are here this afternoon, so I'm sorry about that, but they don't have school in the afternoon so they can be loud sometimes.
THE COURT: All right. Okay. Well, we will see how it goes. Madam Interpreter, you tell me when you need me to stop. Okay?
THE INTERPRETER: Yes, I will.
RULING ON APPLICATION:
THE COURT: On October the 21st, the Court heard an application for a confirmation of the apprehension of Mr. G.'s two children, T. and C. The evidence presented to the Court was entirely in the form of two affidavits from child welfare workers; one affidavit dated September the 26th 2020 and a second affidavit dated October the 16th, 2020.
During the proceedings, Mr. G.'s counsel questioned or challenged the use of hearsay evidence by the Director on the apprehension application. On inquiring of counsel in terms of statutory authority for the admission of hearsay in these proceedings, the Court was referred to section 81(3) of the Child and Family Services Act. That section reads:
An affidavit in support of an application or a proceeding may be based on information and belief.
In W. (Re), 2009 NWTTC 11, Judge Gorin, in considering the issue stated as follows:
I of course appreciate that reasonable grounds import a standard far lower than a balance of probabilities.
THE INTERPRETER: Can you repeat that, please?
THE COURT: "I of course appreciate that reasonable grounds import a standard far lower than a balance of probabilities."
THE INTERPRETER: Okay. Would you read that again? It's more the concern that [indiscernible - background noise] if he understands that.
THE COURT: "I of course appreciate that reasonable grounds import a standard far lower than a balance of probabilities."
THE INTERPRETER: I just explained to him what he just said right now, if we wait for the next sentence, he will understand more of that particular one.
THE COURT: Okay. So again, I am quoting from the judge in that case. He goes on to say:
I also appreciate full well that I can base my decision on an affiant’s information and belief pursuant to s. 81(3) of the Child and Family Services Act.
THE INTERPRETER: The client is asking if there is going to be a decision today.
THE COURT: Yes.
R.G.: Okay. Okay.
THE COURT: And then to finish that quote:
This provision aside, when determining the existence of reasonable grounds it is entirely appropriate to consider hearsay evidence.
And that is the end of the quote. Now, I am just going to go back to my own words.
THE INTERPRETER: Yes.
THE COURT: Okay.
THE INTERPRETER: I was explaining you were quoting just from the Superior Court and then now you are going to be speaking in your own words.
THE COURT: Yes, thank you. I appreciate this is a little complicated but....
THE INTERPRETER: Yes, for sure.
R.G.: I have got to have time to understand here, too, because the speaker is not really good.
THE INTERPRETER: Okay.
THE COURT: That is what I was afraid of. Mr. Clerk, do you know if the audio quality for Mr. G. would be any better if the system was functioning as it is supposed to now?
THE CLERK: No, no, because it is all going through the telephones. The only difference is I can't [indiscernible - background noise].
THE COURT: Okay.
THE CLERK: But the audio itself would be [indiscernible - background noise].
THE COURT: Mr. G., I am concerned that you are not able to properly hear the translation.
R.G.: It is okay but it is [indiscernible - background noise] but I still do understand, you know, but it's kind of [indiscernible - background noise]. But it's not a problem on this.
THE COURT: Okay. If it gets to be a problem that you can't hear, again, I need you to tell me. Okay?
R.G.: Yes, I will.
THE COURT: All right. Thank you, sir.
R.G.: Thank you.
THE COURT: In my opinion, the authorization to receive hearsay in section 81(3) appears to be permissive. However, even if the section compels the Court to accept hearsay on this application that does not mean it is exempt from the normal scrutiny required when evaluating hearsay evidence and ultimately determining what, if any, weight can be placed on it.
In that regard, I refer to an article written by David M. Paciocco, the title of which is "The Principled use of Hearsay in Civil Cases: A Technical Guide to Avoiding Technicality".
All right. You don't need to translate this part, Madam Translator. For the benefit of counsel, that can be found at 2009 CanLIIDocs 138, David M Paciocco – Canadian Bar Review. And now, Madam Interpreter, unfortunately, I have a rather lengthy quote from that article.
THE INTERPRETER: Okay.
THE COURT: But if you can explain to Mr. G. that now, instead of my own words, I am going to be reading what David Paciocco wrote in that article.
THE INTERPRETER: Okay.
R.G.: Okay.
THE INTERPRETER: Sorry, would it be better if you read the whole article and then he is going to listen to it. If he hasn't understand any word in it, you are going to stop?
THE COURT: Okay.
THE INTERPRETER: Yes.
THE COURT: All right. So reading from that article then:
Courts involved in child welfare cases are most apt to claim this kind of liberal approach to the admission of hearsay. For example, in E.S. v. D.M., 1996 CanLII 11653 (NL SC), Puddester J. observed:
Clearly, in civil proceedings as here there is no accused, and it might be argued that the concern as to the absence of cross-examination is by that very reason of lesser import. Indeed, it might be said that in cases involving child protection issues, where the focus is on the best interests of the child rather than the rights or liabilities of the parents, the absence of the ability to cross-examine is for that reason also of less weight in the equation, thus justifying a less “strict” requirement to prove “necessity” for the reception of hearsay evidence.
R.G.: Okay, okay. I do understand.
THE COURT: Okay. So that was the quote from -- that was Mr. Paciocco quoting the judge. Now I am going to go back to quoting Mr. Paciocco. Okay.
THE INTERPRETER: He asked who is the -- Paciocco is the name, who is he?
THE COURT: Well, he is a legal scholar who wrote the article that I am reading from. Going back then to Mr. Paciocco's words:
Perhaps the most telling reason for lessening the intensity of the hearsay rule in child protection matters is that the proceedings are less adversarial and more inquisitorial.
While both principle and authority support the view that the hearsay rule may be modulated or attenuated in the civil context, there are two things that should be borne in mind. First, it is never appropriate in a case governed by the law of evidence to jettison the principles of necessity and reliability entirely. It bears --
R.G.: I don't understand that part.
THE INTERPRETER: He is asking if you could repeat the second part again, please.
THE COURT: I guess to paraphrase, Mr. G., what it says is even if I had to accept hearsay evidence, it still has to be evaluated just like any other evidence. It does not mean that I have to take it at face value.
R.G.: Okay. Okay.
THE COURT: Okay?
R.G.: Yeah, yeah.
THE COURT: Okay. I apologize for all the legal language, but it is the way we function. And you know, like I said, it is not ideal, but please bear with me. Okay.
R.G.: It's okay but it's kind of [indiscernible - background noise]. That is why I ask the translator to tell me.
THE COURT: Yes, okay.
R.G.: So thank you for your patience.
THE COURT: No worries. When it comes to legal words, Mr. G., a lot of people do not understand them even when they speak English.
R.G.: Okay.
THE COURT: So continuing on then from Mr. Paciocco's article:
It bears notice that after invoking the need for flexibility in sexual offence cases involving children, McLachlin J. ultimately applied the necessity and reliability criteria in Khan, and that in Folland, Rosenberg J.A. noted the need for some level of reliability before hearsay can gain admission, even at the behest of the accused.
R.G.: Okay.
THE COURT: And I am coming to the end, thankfully, of the quote. So the last paragraph of the quote says:
By and large civil courts appreciate this. Even where rules of practice permit the admission of hearsay, and even in child welfare cases in jurisdictions where statutory provisions veritably invite courts to accept hearsay evidence, the prevailing practice is to consider the principles of necessity and reliability either before admitting the evidence, or openly and overtly when evaluating the evidence. To paraphrase the Court in Sutherland Estate v. McDonald, to approach the matter otherwise would be to make the unlikely assumption that the law has “sanctioned the admissibility of hearsay evidence that is unnecessary and unreliable”. It has not. What it has sanctioned is a contextual evaluation of how necessary and reliable hearsay evidence needs to be to gain admission.
R.G.: Okay. Okay.
THE COURT: Okay?
R.G.: Yes, thank you.
THE COURT: So thankfully, that is the end of the quote and that is the last quote. Okay?
R.G.: Okay. Thank you.
THE COURT: In hearing the application initially on Ms. Dhindsa's objection to the hearsay and questioning some of the circumstances pursuant to which the child welfare workers received the information, I challenged her with respect to being able to look behind the affidavits in the absence of any cross-examination of the affiants.
R.G.: Okay. I don't understand that part. Can you translate that for me, please?
THE INTERPRETER: Okay. Would you repeat the last one, the last sentence, the challenge? From there, that is where my hearing -- I did not hear you all that well.
THE COURT: Okay. So initially when Mr. G.'s lawyer, Ms. Dhindsa, questioned the admissibility and reliability of the affidavits and the hearsay, I questioned her about how I could do that without her conducting a cross-examination of the people who swore the affidavits. Generally, I would observe that unless there are problems or issues on the face of the affidavit that indicate problems with the reliability of the information, some form of -- sorry.
R.G.: Yeah, yeah, I understand that part.
THE INTERPRETER: Okay. He understood. Sorry, yes, go ahead.
THE COURT: Okay. So in the absence of something on the face of the affidavit, generally my view is that some form of cross-examination would be required to look behind the affidavits. Okay.
R.G.: Yeah.
THE COURT: Just bear with me for a second. My computer timed out. Sorry. Is it okay now, Mr. G.?
R.G.: Yes, yes. Sorry. I need to look after my kids, too.
THE COURT: No, I appreciate the realities of having children in your home. It is --
R.G.: Thank you so much.
THE COURT: It is okay. In this case, having had the opportunity to further reflect on the matter and to consider some of the examples cited by Ms. Dhindsa and also other examples noted by myself, there are concerns that the Court has about the reliability of the information in the affidavit and the weight that the Court can place upon it.
R.G.: Okay. Sorry, a second.
THE COURT: Okay?
R.G.: Yeah.
THE COURT: Okay. Now, I will make comments on my review of the September the 26th affidavit, September 26th also being the date upon which the children were apprehended by the Director from Mr. G. On that date, the affidavit indicates that a call was received at 7:58 p.m. from a confidential source that Mr. G. was drunk, stumbling and said T. was scared. At 8:33 p.m. -- and I should note that that informant indicated that he or she had received the information from the children.
THE INTERPRETER: He was mentioning like he [indiscernible - background noise] that it's not right.
THE COURT: I am not saying it is right. I am just saying what is in the affidavit, Mr. G.
R.G.: Okay, okay.
THE COURT: Okay.
R.G.: Yeah.
THE COURT: So this is just the part of it where I say what is in the affidavit. Later on, I will say what if any use I am going to make of it. Okay?
R.G.: Okay. That's fine.
THE COURT: Okay.
R.G.: Thank you.
THE COURT: I note from the affidavit that a child welfare worker, together with at least one member of the RCMP attended at Mr. G.'s house at 8:33 p.m. The affidavit indicates that, on arrival, everything appeared fairly calm. Mr. G. was watching a movie with the children. The only alcohol or container on the premises was a half-full mickey of vodka. Mr. G. admitted to having a couple of sips of alcohol.
There were no signs of the children being in distress. There was no sign of them being scared or mistreated, no indication that the house was in disarray or any other pressing sign that the children were in immediate need of protection or in need of protection at all.
On October the 1st, I note, and this is unfortunately in the October affidavit, it is indicated that on October the 1st the child welfare worker called the RCMP to ask what the RCMP had in their notes about Mr. G.'s condition on that date (September 26th) in respect of alcohol, and the child welfare worker in the affidavit noted that she was told that the police notes indicated that Mr. G. was noted to be intoxicated. In the absence of hearing from the officer or more particulars from the officer, it is very difficult for the Court to ascribe any level of impairment or an exact level of impairment to Mr. G. "Intoxicated" has many meanings. It can range from simply being under the influence of a small amount of alcohol or it could include being drunk to the point of stumbling.
From the observations of the child welfare worker, it is clear that Mr. G. was nowhere near the higher end of the spectrum of impairment that would be, in my opinion, stumbling and incoherent. Whatever level of intoxication he had, I would point to it as undermining and challenging the reliability of the informant who called Child Welfare at 7:15 p.m., reporting that Mr. G. was drunk and stumbling.
A mere half hour later or just over a half hour later when the child welfare worker attended with the police, the scene bore little resemblance to what had been represented by the informant. The question becomes, and I do not have to speculate, but the question becomes whether the informant misrepresented what they were told by the children, possibly the children misrepresented the state of their father's impairment to the informant, if they related it to the informant at all.
But at the end of the day, I do not need to decide what the underpinnings of the unreliability of the information was. I am satisfied that that information was not reliable, and therefore I place little weight, extremely little weight, on that information.
Further, in the affidavit it indicates that T. had said that Mr. G. probably drank beer, and albeit, you have to appreciate that it is in the words of a ten-year-old, as he was not very crazy in T.'s description. Throughout the affidavits, I would note that there are references to the children clearly appreciating -- unfortunately that they are able to appreciate it -- being able to distinguish between their father being extremely impaired, which at least C. refers to as being cuckoo, I believe she is seven years of age, but in the words of a seven-year-old.
Clearly, they are able to distinguish between when their father is in an extreme state of intoxication and when he is not. And again, if T. is able to distinguish that, it leads me to question the reliability of the informant's call at 7:58 p.m. that alleges that T. said that he was scared and that his father was drunk and stumbling.
Moving on to the October 16th affidavit, again, in assessing its content and its reliability, I note it states in the affidavit that third parties have reported violence towards the children. It also notes, however, that the children have not reported any such violence, and I can only presume that child welfare authorities have not seen any evidence of violence or else it would be contained in the affidavit. The only evidence of violence towards the children is in reference to previous proceedings whereby a friend of Mr. G.'s threw a chair at C. that resulted in other child welfare proceedings and ultimately in the children being taken into the custody of the Director for a period of time, but there is absolutely no evidence of violence engaged in by Mr. G. towards his children.
In terms of evaluating the grounds that existed on September 26th, the child welfare workers of course are entitled to rely on the history of their dealings with Mr. G. and, in that regard, the affidavit presents a more detailed picture of their dealings with him over a period of a number of months. It notes that, after the incident with the throwing of the chair, C., in being interviewed by the child welfare workers, reported that she missed Mr. G. letting her watch TV but, more importantly, from my point of view, giving her bedtime snacks and tucking her in at night.
While I wish not to be mistaken to say that that, in and of itself, is evidence of good parenting, it is certainly a departure from the suggestion that Mr. G.'s children are not well cared for by him. Certainly, the children have, as is evident from the affidavit, a significant attachment to him, prefer to be with him, and their only grievance, their only concern -- and again this is -- Mr. G., I am not impressed by this, that the children indicate that when you are very drunk that it is scary for them.
In any event, the children, after being apprehended because of the incident with his friend, were returned to Mr. G.'s care on May 6th, 2020, and I note on May the 13th Mr. G. entered a voluntary Support Services Agreement. On May the 20th, the affidavit indicates that during a visit by Child Welfare, Mr. G. was sober. Mr. G. also inquired about daycare as he hoped to return to work.
On May the 28th, Mr. G. requested support for daycare. On June the 9th, Mr. G. had to go to Yellowknife for a CT scan and made arrangements for the kids to stay with their grandmother who, as I will note later on in my reasons, is a social worker who works with the affiants and other child welfare workers who have been involved with Mr. G.'s file.
On June the 12th, a visit resulted in the observations that the children were safe and fine and Mr. G. was to be sober. On June 17th and 18th, Mr. G. contacted Child Welfare for help to acquire medications for C. as she had broken her arm. Again, because it is not in the affidavit in terms of the circumstances that led to the breaking of her arm, I presume that Mr. G. is not alleged to have been responsible for or to have contributed to that injury or it would be stated in the affidavit. It is to me an indication of responsible parenting in that he was ensuring that the child got the medical care needed and also had the foresight to ensure that she would have the medication needed.
On June the 19th, Mr. G. picked up a purchase order for groceries, again, an act of responsible parenting. On June the 24th, Mr. G. reported to a child welfare worker that he was tired and asked for support for daycare for a couple of days a week. On June the 25th, Mr. G. advised the child welfare authorities that he was taking C. to have her cast removed.
On June the 28th, an informant reported to Child Welfare that Mr. G. was intoxicated and unable to care for the children, yet when child welfare workers arrived at his home a mere 45 minutes later, there was no evidence of impairment or any need for intervention. The most "damning" note in terms of what was observed was some half-eaten plates of spaghetti on the kitchen table, hardly consistent with what had been represented by the informant and leads to serious questions about the ability of the child welfare authorities to rely on information from that informant.
On June the 28th, the same date, despite the fact that they had been at his house at 6:15 p.m., another report was received at 7:35 p.m. that Mr. G. was intoxicated. The child welfare worker did not return to Mr. G.'s residence to assess his condition and simply noted that on the phone when they called Mr. G. that he appeared to have slurred speech.
On July 1st, Mr. G. did admit to having consumed two beers, but there is no evidence again of the level of intoxication that was represented about, again, 45 minutes after -- well, it would have been less than 45 minutes after the workers had been there that he was intoxicated. Again, one has to question the reliability of that informant and the degree to which the Court can rely on or place any significant weight on that information.
On June the 29th, a visit by the child welfare worker confirmed that all was okay. On July 2nd, the child welfare worker visited Mr. G.'s home, saw both children, no concerns with their well-being were noted. On July 9th, a child welfare worker attended Mr. G.'s house with a grocery voucher, again, no concerns were noted.
On July the 14th, a family member reported that Mr. G. was drunk and that RCMP attended his house. The RCMP advised, on being contacted by the child welfare authorities that while they had attended at Mr. G.'s house, it was at the request of a drunk woman who said that she could stay at Mr. G.'s home. I assume, as is normal in these circumstances that the police were trying to find a responsible adult to leave the intoxicated female with, as opposed to lodging her in cells or some other manner of dealing with an intoxicated person.
Quite responsibly, Mr. G. denied that lady entry to his home, and additionally I note that the RCMP advised that he appeared sober. Again, the child welfare authorities faced with that information would have to question the reliability of that family member's report and the information provided by that family member, given the stark contrast between the information as it was reported by the family member informant and the reality of what was encountered or what occurred.
On July 16th, a child welfare worker interviewed the children about the day the neighbour would not let them go home and the neighbour reported to child welfare that Mr. G. was drunk. Contrary to that report, T. advised in the interview that his father was not drinking that day and that there were no issues.
C., in the words of a seven-year-old, went on to advise that Mr. G. had not been cuckoo lately, again, as I previously stated, "cuckoo" being her word for her father being in an extreme state of intoxication. Both children indicated as well that if their father was impaired or "cuckoo" in the words of C., that they knew to call their grandmother for help.
On July 16th, a child welfare worker advised Mr. G. that there was no immediate need for intervention, but cautioned him that it could quickly get to that point if he allowed his drinking to get out of control. I take this as a representation by child welfare authorities that from the time that the children had been returned to him in May, up to that point in time, they were satisfied that Mr. G.'s drinking had not gotten out of control and there was no apparent need for immediate intervention, which I take it would be in the form of apprehending his children.
On July 9th, Mr. G. requested support for groceries from the child welfare authorities, again demonstrating responsible parenting.
In terms of items of evidence which gives rise potentially for the Court to be concerned about the children’s welfare, the most damning of the representations in the affidavit of October the 16th are the August the 5th reference to the child welfare worker having phoned Mr. G. and assessing him as sounding like he was drinking. Mr. G. and his friend, according to the affidavit, confirmed that he had been drinking to excess for about five days.
The child welfare worker attended on that date at 4:25 p.m., however, noted that while Mr. G. appeared intoxicated, he was not grossly impaired. C., I believe, who was the only child at home at the time, appeared fine, the house was fine, and no other concerns were noted.
On August the 7th, child welfare workers visited, noted that Mr. G. appeared sober, the house was tidy, no obvious signs of alcohol, observed C. who appeared to be fine. On August the 14th, C. advised that Mr. G. had not been drinking since the last time the child welfare worker had visited her house, but I note she also said that he had been drunk the day before. I am assuming she meant drunk the day before that he visited the house. Again, as a matter of general concern, C., as I indicated earlier, which is very unfortunate, indicated that she is scared when Mr. G. is drunk.
On August the 19th, in an interview with the children with the child welfare worker, the children advised that they wished that Mr. G., quite naturally, stop drinking. T. also advised that his grandmother's boyfriend also struggles with alcohol, and I note that that is a place where it does not appear that the child welfare authorities have any issue with the children going to when they allege Mr. G. is intoxicated.
On August the 25th, child welfare workers visited Mr. G.'s home with a purchase order for children's clothing. No concerns were noted. On August the 27th, a child welfare worker attended Mr. G.'s home with some clothing for the children and noted that Mr. G. was sober.
On September the 2nd, a child welfare worker visited to check up on, in her words, Mr. G. On arrival, he was observed to be cooking supper and sober. No concerns were noted.
On September the 13th, the child welfare authorities received a report at 8:00 p.m. that Mr. G. was drunk. Again, the allegation was said to be based on what the informant had been told by the children. Again, unfortunately, in terms of the reliability of the information, on attending shortly thereafter at Mr. G.'s home, he was noted to be sober, and a full house check, a very invasive search of his house, found no alcohol in the home.
Again, one has to question the reliability of that informant, whether it is the same informant as has provided some of the other information which proved to be unreliable on independent verification or attempts at independent verification by the child welfare authorities, and again, it undermines the reliability of the information in the affidavit and causes the Court to be of the opinion that little weight can be placed on much of the informant information, especially to the degree that it is specifically, most specifically, noted to be unreliable based upon observations of the attending child welfare authorities.
On September 14th, the child's grandmother, who is also a social worker who I understand works with some of the social workers that have been involved with Mr. G.'s file in Hay River, reported that Mr. G. was drunk the previous evening, and she knew that the child welfare worker had visited the home. The grandmother said that she was talking to Mr. G. and knew he was drunk from the way he sounded on the phone.
Given the lack of independent verification or, in fact, conflicting verification, I have to note while it is not strictly necessary for the resolution of this file, given the unreliability of what appears to be some of her information, and given that she is in a close working relationship with the people who apprehended or the workers who apprehended Mr. G.'s children, one really has to wonder about a conflict of interest the motivation of the grandmother social worker who I note -- and again, I do not have to ascribe a motive to her, her information is unreliable. But I do note of concern to me is that in terms of potential motivations she is willing to take the children on a permanent basis, but not to assist Mr. G. on a temporary basis. One has to question whether she has an interest in seeing the children removed from Mr. G. on a permanent basis.
On September the 16th, a child welfare worker visited the home and, while the worker noted that Mr. G.'s eyes were glossy, he was steady on his feet and his speech was clear. On September the 18th, Mr. G. requested help with the groceries. Mr. G. attended to pick up a voucher and was sober.
On October the 5th, the child welfare worker visited the home. Mr. G. was noted to be sober. On October the 6th, the child welfare worker interviewed C. who, as I have alluded to already, stated she is scared when Mr. G. drinks, and said sometimes he gets mad when he drinks and he swears. And unfortunately for any child in that situation, she indicated that she is reluctant to tell on Mr. G. because she does not want to be sent to a foster home.
On October the 7th, the child welfare worker interviewed T. who said that all was fine when the child welfare worker, the authorities, attended at his home and apprehended him on September the 26th. On October the 9th, during the weekend visitation, the child welfare worker attended Mr. G.'s home. Mr. G. was sober. The children were observed to be fine and happy to be at home.
While I find that the hearsay evidence is admissible, for the many reasons I have enumerated, I am unable to place significant, if any, weight on the majority of it because of the conflict between the reality of the observations of the child welfare authorities on attending at Mr. G.'s home, as contrasted with the information that was reported to them by the various informants that made the allegations that Mr. G. on all of the various occasions was so drunk that he was unable to care for his children.
Of course, one then has to go on to consider what any of this means or what any of my conclusions mean in terms of the test for confirmation of apprehension as set out in section 12.4 of the Act. In referencing that section, it says:
Where on hearing of an application for an apprehension order the Court determines that:
(a) there are reasonable grounds to believe that the child needs protection and;
(b) that the person who apprehended the child had, at the time of the apprehension, reasonable grounds to believe that the children's health or safety would be in danger if the child were returned to a person having lawful custody of the child, the Court shall make an order confirming the apprehension.
While I conclude that hearsay is admissible for the reasons I enumerated at the beginning of my reasons, it does not mean that the hearsay does not have to be carefully scrutinized and evaluated by the court, particularly where here the contradictions and unreliability are glaringly evident from the face of the affidavit.
On that basis, I have concluded that at the time of the apprehension that reasonable grounds did not exist and that the children should not have been apprehended at that time. I do not need to consider whether there are currently also reasonable grounds to believe that the children are in need of protection, and so I will not pass judgment on that ground. The decision that there were no grounds to apprehend the children at the time of their apprehension is dispositive of this application. Now, Mr. G., I wish to make something clear to you sir.
R.G.: Yes, thank you, I understand everything you said.
THE COURT: Well, before you thank me, before you thank me, let me say this. It is clear from the history on the file that, you know, I appreciate that your wife's passing and being a single parent has been a struggle for you. I am not indifferent to that. But on the other side of the coin, I do not know what you need to convince you that you need to stop drinking, or if you are going to drink, you know, to do as you have in the past and as you did under the Voluntary Care Plan, to find alternate sources of supervision for your children.
I caution you because, while you may feel that this is a victory, it is not an outright victory and you will continue to be under scrutiny as long as you continue to drink, especially if you drink to the point of intoxication or gross impairment I guess. Most of the evidence in the affidavit indicates lower levels of impairment, but if you are grossly impaired and you continue, or if you resume that pattern of drinking in the future, you know yourself that you are at risk of losing your children.
R.G.: Yes.
THE COURT: And moreover, you know, in the long term, like I said, I appreciate your personal circumstances and the difficulties of being a single parent and the untimely death of your wife, but, sir, that is not an excuse, and just because the apprehension was not valid on this occasion, it does not mean that the Court could not find it to be valid on a future occasion. And so I ask you to govern yourself and take what I am saying into consideration because, while I am satisfied that there were no grounds to apprehend your children on the date in question, you know, any reasonable person would think about the circumstances of their children and over the long term what your drinking leads to. So you know I appreciate you are probably happy with my decision, but I do not want you to take it as carte blanche to go back to resort to the behaviours that in the past resulted in the apprehension of your children. Okay?
R.G.: Yes, I am okay, and thank you so much, Your Honour. I made a decision to move back to New Brunswick. I am from there, right? So yeah, I would like to start a new life down home so I've got lots of support down there, better and happier. So I plan to move down home with my kids which will be better for them, too.
THE COURT: Well, it does not matter what province or jurisdiction you go to, Mr. G., as I said, if you resort -- if you go back to the patterns of behaviour that you exhibited in the past, you are going to have issues with the child welfare authorities in whatever jurisdiction that you go to.
R.G.: Yes, I do understand.
THE COURT: Okay. Sir, that is it. You can -- counsel, are there any questions?
A. THIBODEAU: No, Your Honour.
THE COURT: All right. That is it, Mr. G., you can disconnect your call. Madam Interpreter, thank you very much for your assistance.
R.G.: So [indiscernible - background noise] can stay with me now?
THE COURT: Ms. Dhindsa will give you a call to discuss the implications of my decision. Okay.
R.G.: [Indiscernible - background noise].
THE COURT: I said --
THE INTERPRETER: He is asking if are the kids staying with him or what is going to be. There is many other things going on right now.
THE COURT: When you sign off, when you hang up on this call, Mr. G., Ms. Dhindsa is here, I am assuming, Ms. Dhindsa that you will call him right away to explain what will happen from here?
S. DHINDSA: Yes, that's correct, Your Honour. I will give Mr. G. a call after these proceedings.
R.G.: Okay.
THE COURT: Okay. Mr. G., your lawyer is going to call you right away to explain what the consequences of my decision are.
R.G.: Okay. Okay. Thank you so much.
THE COURT: All right. Sir, you can hang up now.
R.G.: Okay. Thank you.
THE COURT: Do you want him to hang up or not?
S. DHINDSA: Yes.
THE COURT: Okay.
THE INTERPRETER: You want me to hang up?
THE COURT: Yes, please hang up.
THE INTERPRETER: Okay.
S. DHINDSA: Just as a way of a procedural matter, should an order be taken from the application, Your Honour?
THE COURT: Well, I guess the only requirement, as I read it -- the only requirement as I read it in section 12.4, but subject to hearing from Ms. Thibodeau, is that the Court shall make an order if I am satisfied that the apprehension should be confirmed. I do not think I am required to make an order when I refuse to confirm or when I decline to confirm the apprehension order.
I would expect under the normal operation of things that the children would simply be now left in the care of Mr. G., but because really that is secondary to my role, how that plays out now is up for you to discuss with the Director, and I guess if you are not satisfied, to come back to court.
A. THIBODEAU: And that's my understanding as well, Your Honour, that when an apprehension is not confirmed, that an order is not prepared. Given that there is no further order made and the children are not declared to be in need of any interim care that their care would no longer be in the care of the Director.
THE COURT: All right. All I can say, Ms. Dhindsa, if there is any issue, I give you leave to come back to seek -- I mean, I do not know -- I think I am functus as of right now. I do not know if I have any jurisdiction if there is a problem. I guess if there is a problem, I am prepared to hear from you as to if I have jurisdiction, but I am hoping that that is unnecessary in all of the circumstances. I suspect it would be unnecessary, Ms. Thibodeau.
A. THIBODEAU: I don't anticipate there being any issues, Your Honour, and I will ensure that I am in touch with the child protection workers --
THE COURT: Okay.
A. THIBODEAU: -- to explain today's decision.
THE COURT: Thank you both for your obvious effort and work that you have put into this file.
S. DHINDSA: Thank you, Your Honour.
(PROCEEDINGS CONCLUDED)
Neesons, the undersigned, hereby certify that the foregoing pages are a complete and accurate transcript of the proceedings transcribed from the audio recording to the best of our skill and ability.
Dated at the City of Toronto, in the Province of Ontario, this 24th day of November, 2020.
____________________________________
Kim Neeson
Principal