THE VOICE OF THE CHILD IN DIVORCE, CUSTODY AND ACCESS PROCEEDINGS

3.0  HEARING THE VOICE OF THE CHILD (cont'd)

3.4 Hearing the Child's Voice Through the Evidence of Third Parties-Hearsay Statements

There may be circumstances in which a child does not wish to express his or her views directly to judicial decision-makers on issues of custody and access.  Rather, the child may prefer to discuss his or her anxieties, interests or views with a social worker, teacher, child psychologist, pediatrician or other trusted individual.  The transmittal of a child's views to the court through a third party constitutes hearsay evidence and is generally inadmissible unless particular conditions are satisfied.

The hearsay rule, one of the oldest canons in the law of evidence, is defined as follows:[315]

A statement by a person other than one made while testifying as a witness at the proceeding that is offered in evidence to prove the truth of the matter asserted.

The historical reason for the inadmissibility of hearsay statements is that the evidence is inherently unreliable.  There is an absence of an opportunity to cross-examine the maker of the statement in order to test perception, memory, narration and sincerity.[316]

The hearsay rule and the plethora of exceptions to the hearsay rule have been the subject of criticism.  It has been asserted that the hearsay rule is "needlessly complicated" and "lack(s) any coherent unifying principle."[317] As stated by Lord Devlin in the House of Lords in Official Solicitor to The Supreme Court v. K. there "are rules of convenience rather than of principle, and the rule against hearsay… is among them."[318]

Reform of the hearsay rule has been advocated for several reasons.  First, the hearsay statements of children often do not satisfy the requirements for the common law exceptions to the hearsay rule as, for example, party admissions, statements of physical, emotional and mental state, or spontaneous declarations.  Second, it is argued that the hearsay evidence of a child may be the best evidence of the subject being litigated.[319]  Those involved in the legal system as well as professionals, such as child psychologists and psychiatrists, maintain that the unprompted statement of a child to a third party may be of high probative value.  In the words of an Ontario judge:[320]

[When] proceedings concern the best interests, safety, and in some cases, the life of the child [g]iven the enormous importance of such issues, the rules of evidence should stand aside when they would prevent the court from hearing all the available evidence which might assist in determining the appropriate result.

Similarly, Madame Justice Wilson in the Supreme Court of Canada decision in R. v. B.(G.) stated that it is important that the courts adopt "a much more benign attitude to children's evidence."[321]

A further reason members of the legal profession have supported the liberalization of the hearsay rule for children is the desire to spare children the experience of testifying in court.[322]  A child may refuse or be unable to recount his or her views to the court.  If a child's statements to a third party are held to be inadmissible as violating the hearsay rule, potentially valuable evidence may not be considered by the court in its deliberations.

The 1991 judgment of the Supreme Court of Canada in R. v. Khan[323] constitutes an important decision regarding the hearsay statements of children.  In this criminal case involving the sexual assault of a three and a half year old child by her physician, McLachlin J. stated that the hearsay rule has often been an obstacle to the reception of children's evidence:[324]

The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions, such as admissions, dying declarations, declarations against interest and spontaneous declarations.  While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with new situations and new needs in the law.  This has resulted in courts in recent years on occasion adopting a more flexible approach, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions.

The Supreme Court of Canada adopted the criteria of necessity and reliability as conditions for the admissibility of the hearsay statements of children.  It must be demonstrated that the child's statement to a third party is "reasonably necessary."[325]  For example, evidence based on psychological assessments that state that providing testimony to the court will be traumatic or cause psychological harm to the child, may suffice.  Failure of the child to meet the provincial or federal competency requirements will also likely meet the "necessity" condition.  The court in Khan stressed that these were just some of the circumstances that could satisfy this criterion of the test.[326]

The second criterion for the admissibility of hearsay statements of children is "reliability." As stated by McLachlin J.:[327]

Many considerations, such as timing, demeanour, and personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement, may be relevant on the issue of reliability.

The court stressed that it did not wish to delineate a strict list of factors that must be present to satisfy the "reliability" prong of the test; rather, "the matters relevant to reliability will vary with the child and with the circumstances, and are best left to the trial judge."[328]  The Supreme Court of Canada in R. v. D.R.[329] and R. v. Smith[330] further elaborated upon the reliability criterion.  It was stated that only a circumstantial guarantee of trustworthiness must be established for the statements to be admitted into evidence; it need not be demonstrated that the hearsay statements are absolutely reliable.  The principles in R. v. Khan were applied in the civil professional misconduct case involving Dr. Khan.[331]

There is a continuing controversy as to whether the rules required for the admissibility of hearsay statements, as articulated in R. v. Khan, should be applied to civil cases and, in particular, child custody and child protection cases.  An examination of civil law decisions reveals that uncertainty persists as to the appropriate test for the reception of out-of-court-statements of children.  As stated by the Alberta Court of Appeal in Re J.M.:[332]

A review of the child custody and guardianship cases reveals a significant disparity in the application of the generally accepted rules regarding the admissibility of hearsay.  The tendency to relax these rules in cases dealing with custody and guardianship of children is often apparent.

Some civil courts, in their adjudication of issues of custody and access have applied the principles in R. v. Khan.  This was the case in both New Brunswick Minister and Community Services v. E.J.L.[333] and C.(C.) v. B.(L.)[334] in Newfoundland.  In the disciplinary proceedings instituted against Dr. Khan, the Ontario Court of Appeal stated that the principles of "necessity" and "reliability" are applicable to civil proceedings involving the hearsay statements of children.  However, Mr. Justice Doherty suggests that the two principles articulated in R. v. Khan may not be applied with the same rigour as civil cases:[335]

Although Khan was a criminal case, I agree with the majority of the Divisional Court that the principles set down in Khan govern the admissibility of Tanya's out-of-court statements in the discipline hearings.  The Civil Rules of Evidence are made applicable to those proceedings by s. 12(6) of the Health Disciplines Act.  As there is no statutory civil rule governing the admissibility of the statement, the common law rules apply.  The reliance in Khan on Ares v. Venner, a civil case, indicates that the necessity and reliability criteria identified in Khan have equal applicability whether the child's out-of-court statement is tendered in a civil or criminal proceeding.  That is not to say that the determination of whether those criteria have been met will be the same regardless of the nature of the proceedings but only that both factors will have to be addressed in both types of cases.  I also need not consider the admissibility of such statements in cases which are neither criminal nor civil, or which may be subject to specific statutory provisions, e.g., Child and Family Services Act.

It has been argued that hearsay statements should be restricted to an issue of weight rather than admissibility.  Several jurisdictions, including France and Scandinavia have abolished the hearsay rule in both civil and criminal proceedings.

It is recommended that the legislatures in this country consider introducing a statutory provision for the hearsay statements of children in divorce, custody and access cases.  Providing the statements are considered to be "reliable" by a court, the evidence should be admitted.  In other words, only the reliability prong of the Khan test should be retained.  This will ensure that the statements of children are considered by judges in their deliberations.  Once the evidence is received, the judge will assess the weight to be accorded to such statements.

3.5 Judicial Interviews

The practice of a judge privately interviewing a child as a means of ascertaining a child's wishes is a subject of controversy.  Proponents of such a practice argue that children may not feel comfortable expressing their views in open court or in the presence of their parents.[336]  A judicial interview, it is stated, allows children to express their views in a free and relaxed manner.

A judicial interview generally takes place in judges chambers although some judges have accompanied children to a "park for a chat."[337]  Advocates of such a practice argue that this minimizes any adverse psychological harm that may accrue to the child from participation in the legal process.  It is also credited with providing a more accurate account of the child's views "free from the adversarial system and from the prompting of others."[338]

Opposition to judicial interviews, however, have been vociferous.  Jurists such as Abella J., L'Heureux-Dubé J., Rothman J., Huddart J., and Nasmith J., assert that the practice of interviewing children in chambers is not a good method of ascertaining the wishes of the child.[339]

Several reasons have been put forth for this position.  Judicial interviews, it is argued, are conducted in an intimidating environment by a person who is not skilled in asking questions of children or in interpreting their answers.  It is stated that the short time of the interview makes it unlikely that the perceptions of the child explaining his or her wishes can be considered in sufficient depth.[340]  In addition, in an adversarial system, the judicial interview is considered by some to be a violation of the judge's role as an impartial trier of fact.[341]  This is because the judge assumes an inquisitorial role when questioning a child in an interview.  There is also concern that the parents' procedural rights are infringed as they are not present at the interview and, therefore, are not in a position to rebut statements made by the child.  The Saskatchewan Court of Appeal in Hamilton v. Hamilton[342] held that an interview should not be used to obtain vital evidence that would be shielded from challenge by the litigants.  Judge Nasmith in "The Inchoate Voice" summarizes reasons for his disapproval of judicial interviews as a means of eliciting the views of the child:[343]

  1. it does not constitute evidence;
  2. the content of the interview cannot be reviewed on appeal;
  3. there is a denial of the rights of the parties;
  4. the child is not protected from the right to state a preference; and
  5. 5. justice is not seen to be done.

In Jandrisch v. Jandrisch,[344] Huband J. A. of the Manitoba Court of Appeal stated that a trial judge has discretion to interview children in private without counsel.  However, it is important that a record exist of what was said in the interview in the event that the rights of the parties are subject to appeal.  If it is not possible to have a verbatim transcript, a statement from the judge as to what was said must be available.  In Demeter v. Demeter,[345] two children, eight and thirteen years old, were individually interviewed by a judge in chambers.  A court reporter was present.  The parties were advised that the wishes of the children would be conveyed to the litigants but only in general terms.  This was because disclosure of the full contents of the interview might embarrass the children or damage their future relationships with each parent.

It is maintained that the practice of judicial interviews should only be resorted to when other means of obtaining the child's views are unavailable.[346]  Certain criteria must be fulfilled:  a court reporter must be present to transcribe the interview, the child should be told in advance that what he communicates to the judge will be repeated to the parties, and counsel for the child should be present.[347]

According to Article 394.4 of the Quebec Code of Civil Procedure, a judge may hear the child alone outside the presence of the parties.  The parties must be advised of the judicial interview and a transcript of the stenographer's notes, or a copy of the recording of the hearing, must be available.  Similarly, Subsection 64(3) of the Children's Law Reform Act[348] stipulates that judicial interviews are to be recorded.

3.6 Child-Friendly Courtrooms and Court Preparation for Children

The physical design of courtrooms in Canada may exacerbate the anxiety of a child who wishes to participate in divorce, custody, or access proceedings.  The size of the court, the elevated position of the judge, and the public gallery are intimidating.  Children who have testified in legal proceedings report that the isolation of the witness box made them feel as if they were on trial.  Bad acoustics and lack of amplification systems unnerve children who are constantly interrupted during the course of their testimony and told to speak louder.[349]

The design of courtrooms for children in family cases is worthy of consideration by federal and provincial government officials.  A smaller, more informal room may reduce the stress of a child and may result in more comprehensive testimony.  Booster seats, better audibility and amplification systems are some measures that can be introduced with minimal expense.  It is noteworthy that a child-friendly courtroom has been established in Toronto for criminal child sexual abuse cases.  The court is located in a remote section of the courthouse.  There is a separate entrance to the court for the child, sound systems have been installed, and booster seats are available.[350]

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