Children's out of Court Statements

Ward v. Swan, 2009 CanLII 22551 (ON S.C.)

The court gave directions on children's hearsay offered to prove: the truth of thier contents; the chidlren's state of mind; the former via the evidence of the children's lawyer; the latter via the evidence of the childfen's lawyer.

The court contrasts the idea of hearsay exception and the "principled approach" to hearsay, the latter after the court accepts satisfaction of necessity and reliability (R v. Khan, [1990] 2 S.C.R. 531.

State of mind is an exception to hearsay because the statments are no offered as truth of their contents but as evidence of the utterer's state of mind, which is tosay, circumstantial evidence from which the state of mind may be inferred. The exception is not to be a back door for proving truth of contents. This applies to to the child's statements offered by a fact witness and an expert witness including as assessor or a social worker.

On the principled approach, the first hurdle is necessity: that the child cannot testify. Then the statements nust be shown to be reliable. The underlying premise is that the rules of evidene must be applied to family law cases.

The best vehicle for determining these standards is a voir dire.

Necessity can be met when the court is loathe to have the child testify and being traumatized by doing so.

For reliability the onus during the voir dire is on the adducer. The onus requires showing that enough trust can be put in the statements given how they came about or that the fact finder can assess their worth. These are not mutually exclusive. Factors the court takes into account in its approach to these issues include: the surroubding circumstances, timing between the statement and what it describes, method and timing of any recording of the statement, absence of manipulation or suggestion, is the statment responsive to a leading question, is the witness impartial, the witnesses's demeanour, any motive on anyone;s part to fabricate, the child's age, its cognitive abilities, and the content and context of the statement.