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How does the Court receive a child's evidence in a family law case? 

How does the Court receive a child's evidence in a family law case? 

Generally, the Court will prefer to resort to s.202 (which relates to receiving the Child's hearsay evidence) or s.211 (which relates to appointing a qualified person to interview the Child and prepare a report to court) instead of receiving the Child's oral testimony or affidavit (written) evidence.

In the case of T.A.O. v D.J.M, 2021 BCSC 1690 (CanLII), the Court addressed the issue and provided its reasoning as follows:

[3]         The parties share one biological child, N., who is almost seven. This application primarily concerns the proposed testimony ofS., who is N.’s half sister. S. is the biological daughter of the claimant and the stepdaughter of the respondent. She is 16 years old.
...
[21]       Section 202 of the Family Law Act, S.B.C. 2011, c. 25 [FLA] allows a court the discretion, having regard to the best interests of the child, to admit hearsay evidence it considers reliable of a child who is absent.In addition, the court may admit hearsay statements of the child under the principled exception to the hearsay rule: N.J. v. S.J., 2018 BCSC 2352at para. 11; and D.A.M. v. D.M.T., 2013 BCSC 359 at paras. 22-26.
[22]       The necessity requirement for hearsay evidence of children is met by virtue of the fact that it would be potentially harmful for a child to testify in acrimonious family law proceedings: N.J. at para. 10.
[23]       The FLA does not preclude a child from testifying in court, nor does it require a child to testify. Section 202 simply grants this court the discretion to receive hearsay evidence regarding statements made by children, so long as the evidence is deemed reliable. This provision is designed to protect a child from the potential psychological harm which may result from testifying in a family law proceeding involving one or both of the child’s parents. This is an important and laudable goal, and in my view, the participation of children in family disputes should be discouraged rather than encouraged. However, where there are serious concerns about credibility, and the child is old enough, mature enough, and willing to testify, it may be preferable in some cases to receive the child’s testimony directly rather than relying on hearsay statements.
[24]       While I do have concerns that children should not be drawn into family law proceedings, these concerns should not preclude the court from receiving children’s evidence where the circumstances warrant. Such evidence, if received, should be permitted, provided that:
a)    the decision of the child to testify is entirely voluntary;
b)    it is instigated at the request of the child;
c)    the child is old enough and mature enough to understand the consequences of giving an oath to tell the truth; and
d)     the evidence is probative to an issue before the court.
[25]       After carefully considering the evidence and the submissions of the parties, I conclude that S.'s evidence relating to her sexual abuse allegations against the respondent is relevant and of probative value in determining the real risk of harm to N. The question of what happened between the respondent and S. is relevant to my overall risk assessment for N.
[26]       Because the respondent denies the allegations, and there are competing versions of events, the Court will need to determine the credibility of the respondent and S. This is difficult to do on the basis of hearsay statements alone. While it is true that Dr. Elterman addressed the allegations made by S., it is not his role to make findings of credibility. As such, his conclusions, though potentially valuable to this Court, cannot replace the fact‑finding duty of the trier of fact as to whether the alleged incidents did in fact occur: A.P v. J.C., 2018 BCSC 1381 at para. 118.
[27]       S. will be 17 years old in a few months. She has already provided an affidavit in this proceeding, and I am told she wishes to voluntarily testify out of concern for her sister’s well being. Based on the material before me, I conclude that S. is mature enough and old enough to understand the consequences of giving an oath to tell the truth.
[28]       This then brings me to how S.'s evidence should be received. The claimant asks that S. be permitted to testify remotely as S. does not wish to be in the presence of the respondent. In addition, she wishes to have a support person with her while she testifies. In this case, the proposed support person is L.F., who is the mother of S.'s boyfriend. Presumably, S. would be testifying from L.F.’s home.
...
[33]       I am satisfied in this case that S. may testify outside of the courtroom. However, I am not prepared to allow her to testify from her boyfriend's home. While the court has permitted testimony to be given by a witness in locations other than the courthouse, in this case, questions arise from my review of Dr. Elterman's report about the potential that S. could be influenced or coached with respect to her testimony. As such, to avoid any concerns of impropriety, it is important that S. testify in a setting where an independent party is present to confirm that S. is free of influence.
[34]       I will therefore allow S. to testify remotely and to have her support person present, provided that her testimony is within the confines of a courthouse or an equivalent and secure location, and arrangements are made to have an independent observer, such as a court reporter, be present to ensure that S. is not being influenced by anyone, including the support person, and that she is not relying on any written material or other aides without the knowledge and approval of the court.
[35]       I now turn to the cross-examination of S. I conclude that the respondent should not be permitted to personally cross-examine S. Without pre-determining the veracity of the allegations, this will help ensure that optimum circumstances are created for the court to receive a full and candid account from the witness. It will avoid any potential trauma which could arise from permitting an alleged abuser to cross-examine the complainant.
[36]       As the respondent is self‑represented, the claimant has offered to pay up to $1,500 for his legal costs so that he can retain legal counsel to cross-examine S. I note this sum may not be sufficient to cover the full legal expenses of the lawyer retained by the respondent. However, in the circumstances, it is reasonable and appropriate to ask the respondent to pay for any excess legal costs associated with the cross-examination of S., should they exceed $1,500. This order is made without prejudice to the respondent's right to argue at the conclusion of this trial that those excess costs should also be borne by the claimant.
...
[39]       Clause 2 of the NOA is granted such that S. is permitted to testify in a room outside the courtroom via closed‑circuit television or other approved technology, as follows:
a)    S. may only testify in a controlled setting such as a courtroom or the offices of a court reporter.
b)    An independent third party must be present throughout the testimony of S. to ensure that S. is testifying free from influence by anyone.
c)    S. may have a support person, namely L.F., present while she is testifying.
d)    There must be no communication between S. and the support person while S. is testifying.
e)    S. is not to have any notes or other documents with her when she is testifying, except for documents approved of by the court. This includes cell phones or other electronic communication devices.

...

[41]       Clause 4 of the NOA is granted such that the respondent shall not personally cross-examine S. with respect to her testimony. Any cross-examination of S. is to be conducted by legal counsel of the respondent's choosing, as follows:
a)    the claimant shall pay up to a maximum of $1,500 towards the legal costs of the lawyer retained by the respondent to conduct S.'s cross-examination, which money is to be forwarded to the respondent’s lawyer intrust upon receipt of a letter from the respondent’s lawyer setting out the amount of the legal retainer required for the purposes of the cross-examination of S.;
b)    in the event that the respondent's lawyer's cost is less than $1,500 for the cross-examination of S., any excess funds in the respondent's lawyer's trust account are to be returned to the claimant's counsel; and
c)    in the event that the cost of the respondent's lawyer to cross-examine S. exceeds $1,500, this excess amount is to be paid for by the respondent without prejudice to his right to argue in a costs hearing that the excess cost of hiring the legal counsel should be borne by the claimant.

...

[48]       THE COURT: As I have said, I am very reluctant to have a child participate in the proceeding. To ensure that S. is not being pressured by anyone to testify, I make this additional order. Prior to the commencement of S.’s testimony, she will be required to confirm to the court that her decision to testify is voluntary and instigated by her. In other words, she should not be testifying because she has been told to or asked to testify in this proceeding by any parent, any relative, friend, or legal counsel. The request to testify should be at her own instigation because she believes that this court needs to hear from her.
[49]       It is my understanding that S.’s affidavit contains the full sum of the evidence that claimant’s counsel anticipates eliciting from S. at trial. As such, her direct examination is not to veer away from the substance of what is contained in that affidavit. Counsel for the respondent is, of course, at liberty to cross-examine S. on her police statements or MCFD files, assuming that those will be put into evidence.

Link to full case here: https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc1690/2021bcsc1690.html

Written by
Mark J. Chiu
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