Though we rarely blog about child protection cases, the matter of Children’s Aid Society of Ottawa v. M. (E.S.) raised an interesting issue that sometimes arises in cases outside the "child protection" realm. The issue is whether a parent should be permitted to call his child as a witness at trial. In this instance, however, the father wanted to call his stepson. The matter was heard by Justice de Sousa whose judgment was released April 19, 2011.

The Facts

The issue before the court arose in the context of an outstanding Children's Aid Society Status Review Application for Crown Wardship with no access. In the course of a trial management conference, the respondent father, M.M. (M), asked for a ruling on whether he would be permitted to call his stepson, T.S.K. (T) (16 years of age at the time) as a witness in support of his case for the imminent child protection in the matter dealing with his two younger children, D.S.M (born April 20, 2006) and L.S.M. (born September 30, 2007). The mother of all three children, E.S.M. (E) opposed the respondent's position.

Justice de Sousa began by describing T's upbringing and his relationship to the Respondent. It was evident that T had lived a rather difficult life; he had been the subject of protection proceedings in which he was apprehended a number of times. Moreover, T was a child with special needs, having been diagnosed with Oppositional Defiant Disorder (ODD) and Attention Deficit Hyperactivity Disorder (ADHD). There was also evidence to suggest that the Respondent and T had had a "conflictual relationship" and that T may have been subject to Mr. M's discipline, which included physical discipline.

At the time of trial, T did not have any access to Mr. M, nor did he wish to. Rather, he was living with his mother and the supervision order respecting him was scheduled to be terminated soon. It was T's wish that he no longer be the subject of protection proceedings, and was set to continue to live with his mother.

All counsel in the case, including CAS as well as counsel for T, opposed Mr. M's request to compel T to testify at trial. T's counsel indicated that T did not wish to testify at the future trial pertaining to his half-brothers, nor did he wish to have any contact with Mr. M.

Reasons for Compelling Testimony

At trial, Mr. M made submissions that T should be compelled to testify for three reasons:

1. to testify about T's abusive treatment towards his half-brothers;
2. to testify about alleged assaults that were perpetrated by Mr. M on T, and how Mr. M's method of discipline changed over time as Mr. M's discipline strategy towards T changed; and
3. to testify about Mr. M as a "caregiver."

Court's Analysis

Although T was clearly a compellable witness, it was at the discretion of the court as to whether it was appropriate to hear his testimony. Reviewing the case law, Justice de Sousa noted the courts' hesitancy to permit children to participate directly in family law proceedings, as this is generally not considered to be in their best interests. This notion is supported by s. 39(5) of the Child and Family Services Act which is aimed at shielding children from direct involvement.

Because T was not slated to be the subject of the future child protection proceedings, Justice de Sousa rejected the application of s. 39(5) to the case before him. He nevertheless was eager to remind the court that any decision must reflect T's best interests.

Justice de Sousa then set out the factors a court is to consider in determining whether to compel a child to testify:

1. The age and maturity of the child,
2. The child’s view with respect to testifying,
3. The trauma that such an experience might or would cause the child especially if it involves testifying for or against a parent,
4. The purpose for which the child is being called as a witness,
5. The reliability and probative value of the child’s evidence,
6. The importance and relevance of the child’s evidence, and
7. The availability of evidence from other sources to address the issue in question.

After considering all the factors as they applied to this case, Justice de Sousa held that it would not be in T's best interests to compel him to testify for the purposes identified by the Respondent.

Not only did T not wish to testify, but Justice de Sousa believed that to allow him to do so would require T to have contact with his stepfather "in a very intense and emotional context" and would put him in a "difficult position with his mother with whom he continues to live." Despite T's age, the court held that to compel T to testify may jeopardize his relationship with his mother which would be traumatic for T.

Furthermore, Justice de Sousa dismissed Mr. M's claim that T's alleged abusive behaviour of his younger siblings would be relevant to Mr. M's impending case. While the court agreed that the respondent father's ability to parent his stepson was most certainly related to how he parents his own children, Justice de Sousa was not convinced that the evidence the respondent hoped to illicit from T could not conveniently be obtained elsewhere and by some other adult witnesses.

Dr. MacLean, the professional responsible for completing the Family Court Clinic Assessment in which all members of the family were subject, was already set to be a witness at trial.

In the end, the take away from this case is that a court will not compel a child witness to testify unless it is both necessary and not adverse to their best interests. In this instance, the court was not satisfied of either. Accordingly, any witness subpoenas compelling T as a witness to the trial were quashed.