L.J. v. Dir. of Child, Family and Community Services

2000 BCCA 446 Citation: Jack v. Dir. of Child, Family and Community Services Date: 20000726 2000 BCCA 446 Docket: CA026237 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: LARRY JACK and TERESA JACK PLAINTIFFS (APPELLANTS) AND: THE DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICES DEFENDANT (RESPONDENT) Before: The Honourable Madam Justice Rowles The Honourable Mr. Justice Finch The Honourable Mr. Justice Hall B. Hird J. Roth Counsel for the Appellant, Larry Jack Counsel for the Appellant, Teresa Jack R. Freedman & J. Fulford Counsel for the Respondent Place and Date of Hearing: Victoria, British Columbia 4 October 1999 Place and Date of Judgment: Vancouver, British Columbia 26 July 2000 Written Reasons by: The Honourable Mr. Justice Hall Concurred in by: The Honourable Madam Justice Rowles Concurring Reasons By: The Honourable Mr. Justice Finch (Page 30, para. [36]) Reasons for Judgment of the Honourable Mr. Justice Hall: [1] This case concerns three female children taken into care by the Director of Child, Family and Community Services (the "Director") under the provisions of the Child, Family and Community Service Act, S.B.C. 1994, c. 27, as amended. The three female children are the children of the appellants. They are respectively, Diane born March 6, 1989, Bella born November 19, 1991 and April born April 8, 1994. As I calculate their ages, the eldest child, Diane, would now be 11, Bella would be 8 and April would be 6. [2] It apparently came to the attention of the child protection authorities at Ucluelet in early 1996 that there were difficulties at the home of the parents and a suspicion that the eldest child, Diane, may have been treated in a sexually inappropriate manner by her father, Mr. Jack. Mr. Jack has two families, one largely grown and the other comprising these three daughters. A social worker with the respondent, Mr. Mayba, as a result of information that came to him from another social worker on February 7, 1996, interviewed two of the adult daughters of the male appellant. As a result of what he learned from his inquiries concerning the eldest daughter, Diane, he went to the elementary school in the community where the parties resided on February 8, 1996. He was accompanied by one of the adult daughters, V.J., who alleged that her father had treated her in a sexually inappropriate manner when she was between the ages of six and eleven. She told the social worker, Mr. Mayba, that she had recently been told of worrisome conduct of a sexual nature occurring between her father, the male appellant, and Diane. In an interview at the school, Diane initially said that a person called Hank had done something sexually inappropriate to her. She did not say anything about her father at this time. It was clear to the social worker that Diane appeared to be tense and close to tears during the interview. The social worker concluded the initial interview and left the area, leaving together Diane and her elder half-sister, V.J. Soon after, V.J. approached the social worker who was still on the school premises and told him that Diane had said that her father had been touching her inappropriately. When the social worker again spoke to the younger girl in the presence of V.J., Diane told him that her father had touched her inappropriately. It was known to the social workers involved in the case that, at that time, there were some serious problems with drinking and partying at the residence where the young girls resided with their parents. A decision was made to apprehend the children and they were placed in an approved home not far from the area where the parents resided. [3] On February 14, 1996, there was an initial presentation hearing before a Provincial Court Judge. An order was made that custody would remain with the Director, that there be no access afforded to Mr. Jack and that there be generous but supervised access to Mrs. Jack, the female appellant in this case. The question was expressly left open as to whether unsupervised access by the mother would be a preferable option. At this initial hearing, the mother had counsel who participated in the hearing but the father did not attend or have counsel present. A protection hearing was scheduled for March 25, 1996. [4] The parties were back in court on March 11, 1996. The Director was then seeking a restraining order because apparently there had been some contact between Mr. Jack and Mrs. Jack with the children contrary to the terms of the existing order. The presiding judge at this hearing made an order under s. 98(1) of the Act that Mr. Jack should be restrained and prohibited for a period of six months from contacting or interfering with, or attempting to contact or interfere with the children. [5] On March 25, 1996, the protection hearing took place. Since it is reasonably central to this case, it is desirable to set out in some detail what happened there. A police officer, who was then investigating Mr. Jack for a possible charge of sexual assault against his eldest daughter Diane, was called as a witness. The officer played a videotape of an interview between himself and Diane. Counsel for the Director and counsel for Mrs. Jack were in attendance at that hearing. Mr. Jack did not attend and was not represented by counsel. The police officer gave the following evidence in his examination in chief: Q Sergeant Hurrie, during the tape the child refers to two incidents, the first one involving an Uncle Hank. There was a photograph on top of the table or a picture on tope of the table, did you see what was on that picture? A That diagram? Q Yes? A Yes -- Q What was it a diagram of? A Diagram of a figure of a person. Q And under questioning, the child pointed to the diagram to show where Uncle Hank had placed his hand. Did you see where she pointed to? A Right to the crotch. Q And then the second incident involved an incident where she says her dad touched her, and again in response to a question she points to the diagram. Did you see where she pointed to that time? A Yes, again to the crotch, Your Honour. [6] At the hearing, the social worker, Mr. Mayba, was also called as a witness. He recounted how, on February 7, he had been told by another social worker, who had interviewed V.J., that V.J. had informed the social worker that about a year previous, Diane had disclosed to her that Mr. Jack had taken his clothes off and was lying on top of her and hurting her. Mr. Mayba said that there had been earlier complaints of disorder in the house and, as a result of this additional information, he spoke to V.J. and to another daughter, L.J., (both adults) who indicated that the home where the children resided with the appellants was not a very good environment because of drinking and disorder. V.J. related to Mr. Mayba that, as of a year previous, Diane had complained about sexually inappropriate behaviour by Mr. Jack and that V.J. believed this activity was still going on. Mr. Mayba then described for the court the discussions he had at the school with V.J. and Diane. He described how the children had been taken into the care of the Director. Cross-examination of the witnesses at this hearing was conducted by then counsel for Mrs. Jack. The theme of that cross-examination was that, although there might be and have been in the past concerns about the conduct of Mr. Jack, there was no particular concern about the conduct of Mrs. Jack. Mr. Mayba responded that there was no concern about Mrs. Jack's personal activity but there was concern about her being a party to drinking and disorderly conduct and not being able to appropriately protect the young children in the home environment. [7] V.J. also gave evidence at this hearing. She testified that Diane had complained to her that Mr. Jack was hurting her. V.J. also alleged that she had been sexually abused by Mr. Jack from the age of six to about the age of eleven when she and her mother left the family home. In cross-examination, the following interchange occurred: Q And she told you that her father takes his clothes off and hurts her? Is that what -- A Takes her clothes off too, you know. Q Takes her clothes off? A Gets on top of her. Q And what? A He takes her clothes off and gets on top of her. Q I see. Did you make this known to the Ministry of Social Services at the time? A No, I didn't. Q What did you do with this information? A Told my mom when we got back into town. Q Your mother. What's her name? A E.M. Q E.M. Did she do anything with that information? A No. Q Was there a reason why you didn't do anything with the information? A No reason, just didn't -- I guess we didn't really want to get involved then. [8] Another social worker, Gloria Valentine, gave evidence at this hearing. She testified that she worked as a family care worker and was familiar with the family and with the children. It was her evidence that drinking was a problem in the home, particularly with the father. She testified that she was endeavouring to give counselling to the parents mainly with regard to the drinking problems. In cross-examination, this witness confirmed that she had no reason to believe that the mother had a drinking problem. [9] The preceding is a summary of the salient evidence that was before the court at the protection hearing. The Director requested the court to continue an order for supervised access to the mother and to continue a no access order for the father. Counsel for Mrs. Jack, while acknowledging that there might be legitimate concerns relative to Mr. Jack, submitted that Mrs. Jack should have the children returned to her. Counsel suggested that, as Mrs. Jack was not then apparently residing with Mr. Jack, there was no reason why she could not have the children returned to her. [10] Since this case revolves around facts or conclusions apparently found at the protection hearing, it is useful to set out the Reasons the judge gave for making the order to remove the children: THE COURT: This is a protection hearing, a presentation hearing having occurred on the 14th of February 1996 involving the three children, Diane Jack, date of birth March the 6th, 1989, Bella Jack, born November the 19th, 1991, and April Jack, born April the 8th, 1994. Having heard the testimony of the witnesses called on behalf of the Director, and having observed a video interview of the child Diane, and having considered in particular the provision of section 17 of the Child Family and Community Service Act, I find that the Jack children are in need of protection. I find particularly germane the testimony of V.J., who testified that she was sexually abused by Larry Jack, her father and the father of Diane Jack, who disclosed that she had been assaulted. Having found that the children are in need of protection, what is to happen with respect to custody? I do note what counsel have said with respect to the children being returned to the mother, but having heard the uncontradicted evidence of the Director, I do order that temporary custody be granted to the Director for a period of three months, with generous and reasonable access to the mother. There will be a term as well in the order that access to the children by the father, Larry Jack, is denied. [11] The order was limited to three months in duration because that is what the Act requires when dealing with children of the age of the younger children in this case. Thereafter, commencing in June 1996, there were a considerable number of adjourned hearings extending the extant protection order. On June 19, 1996, at the first of these hearings, Mr. Jack appeared in person and Mrs. Jack was then in the process of obtaining a new counsel, Mr. Roth. The matter was therefore adjourned for a week to June 26. At that time, Mr. Roth opposed any further extension of the order. The Director was seeking a three month extension of the temporary order. Mr. Roth noted that Mr. Jack would hopefully obtain the assitance of counsel within the next two months and, at that point, he and Mr. Jack's counsel would be prepared to deal with the matter. Mr. Roth then suggested that rather than three months perhaps an adjournment of two months would be more appropriate. Ultimately, with the agreement of counsel for the Director and Mr. Roth, the case was adjourned to August 29, 1996 "for mediation". Apparently, there was a case conference in August of 1996 but the case was not resolved. The case was back in court in January of 1997, this time in the presence of only counsel for the Director and Mr. Roth. By consent, the matter was adjourned for a further two months. The extant order remained in place. [12] On March 12, 1997, the matter was again before the court. On this occasion, counsel for the Director, counsel for the mother and Mr. Jack, who was without counsel, were present. It appears to have been the view of all concerned at that time that a case conference might advance matters and so the matter was adjourned to May 6 for a case conference. On June 6, counsel for the Director and counsel for both appellants appeared before the court. It seems the case was, by consent of the parties, adjourned for a further period of three months in order to have the parents obtain more counselling and assistance in the hope that eventually the matter could be worked out in some consensual fashion. How matters stood at that time can probably best be discerned from these remarks of the judge: THE COURT: All right. The order will go as sought and as consented to. I want to express my appreciation to counsel and their clients for making an effort to one more time deal with the issues that are outstanding in trying to resolve this matter without the court having decided it. It seems to me that it is in the children's best interests, and I speak to the parents now, that the parents make whatever efforts are necessary to take this out of the hands of the court so that the court is not deciding the fate of your children. You have a responsibility to them and to each other that you now have an opportunity to -- a few months at least, to try and resolve the outstanding issues to the satisfaction of those who would seek to protect the children. So I'll leave it in your hands. In the end it's not up to the lawyers, it is up to you. You must make the appropriate decisions and take the appropriate steps and remember you are doing it for your children. You owe them that. I'll leave it with you and I wish you luck. Thank you, gentlemen. [13] On August 27, 1997, the parties again appeared before the court and adjourned the matter to October 21, 1997 for a further case conference. There were additional appearances before the court to continue the existing temporary protection order in January and February of 1998. At the latter appearance, there were discussions about disclosure and the scope of the evidence that would be presented at the hearing. The matter then came before the court on March 19, 1998 and what occurred on this occasion can be discerned from the following passage: MR. ROTH: Your Honour, this is akin to a mini-trial. I have drafted a rough question which is the reasons that we're here today, so that the court's aware of the reason, it's succinct. Your Honour, my friend Mr. Braker [counsel for the Director] at the last case conference indicated that his view that it wasn't necessary for him to rerun the evidence that was presented at the protection hearing at a hearing for continuing custody, and it was suggested that we make an application to the court in this manner so that this issue can be decided, because a lot is going to turn on this issue with respect to the length of the hearing and the witnesses that will be called and so on. [14] At that hearing, the judge was asked to determine the following questions of law by what was termed a "stated case" procedure. The following questions, as set out in the Appeal, were submitted for decision to the Provincial Court judge: [1] At the hearing where the Director is seeking a continuing custody order based on sexual abuse, if the only evidence of sexual abuse by the parent known to the Director is the evidence led by the Director at the Protection Hearing, must the Director reintroduce the evidence of sexual abuse that was led by the Director at the Protection Hearing in order to prove its case? [2] If the answer to question 1 is negative, are the parents precluded from raising issues or calling rebuttal evidence with respect to evidence of sexual abuse that were in front of the court at the Protection Hearing. [15] After considering the matter, the Provincial Court judge, on April 8, 1998, gave the following judgment: I am persuaded that the court at a continuing custody hearing cannot revisit the finding made by a judge of this court at a protection hearing. In this specific case, the director called "uncontradicted" evidence of sexual abuse upon the child, Diane Jack, by her father. Judge Iverson found that to be so and as a result found the child to be in need of protection. There is no requirement that the director reintroduce this evidence at the continuing custody hearing. There is, however, nothing to prevent the director from introducing additional evidence of past misconduct (of any kind) by a parent at the continuing custody hearing. The court would expect full disclosure to the parents pursuant to s. 64 and, of course, the parents would have full opportunity to respond during the course of the hearing. The parents are not, however, entitled at a continuing custody hearing to raise issues or call rebuttal evidence in regard to findings of fact already made by this court at a protection hearing. The court answers the questions of law framed in the stated case as follows: [1] No. [2] Yes. [16] The judgment of the Provincial Court judge was appealed to the Supreme Court of British Columbia and came on for hearing before Lander J. on January 22, 1999. Lander J. dismissed the appeal by Reasons dated Mach 18, 1999. The order of Lander J. placed before this court, which appears to be in draft form, contains the following paragraphs: THIS COURT ORDERS AND DECLARES THAT at a continuing custody hearing under the Child, Family and Community Services Act, the Director is not required to reintroduce evidence with respect to findings of fact that were made on the balance of probabilities at the protection hearing regarding the need for protection of the children. THIS COURT FURTHER ORDERS AND DECLARES THAT findings of fact made on the balance of probabilities at the protection hearing are res judicata and cannot be controverted later at a continuing custody hearing. THIS COURT FURTHER ODERS AND DECLARES THAT at a continuing custody hearing, parents are precluded from raising issues or calling rebuttal evidence with respect to findings of fact that were made on the balance of probabilities at the protection hearing regarding the circumstances surrounding the removal of the children or the need for protection of the children. [17] This appeal is an appeal from that order. [18] Counsel for the appellants argue that because child protection hearings are essentially non-adversarial, the principles of res judicata ought to have limited application. It is argued that findings or conclusions made at the initial hearing should be open to revisitation and reargument. Counsel for the Director submits that the appellants are seeking orders or declarations which would effectively require the Director to reintroduce evidence called at the protection hearing to establish that the children were then in need of protection. Counsel submits that, although there was no appeal taken from the original protection order made in March of 1996, the appellants are now seeking to indirectly appeal that order. The Director says that this is not a permissible course of action under the relevant statue, The Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, ("the Act"). [19] It perhaps may be observed that things here appear to be in some measure in a procedural state of confusion. It is not entirely clear to me just how the "stated case" proceeding came before the learned Provincial Court judge. Undoubtedly, it was a well motivated attempt by counsel involved in the case to endeavour to more clearly define these issues and to decide on the nature and the course of any continued hearing. Whether, in the result, that has been, or will be, achieved may well be doubted. Section 66 of the Act provides that a hearing under the Act "may be as informal as a judge may allow". Paramount in these types of proceedings is a concern for the safety and welfare of children. That said, it must always be borne in mind that, to the extent possible, courts should strive to keep families together if this is a feasible option. The probably not always reconcilable guiding principles are set out in s.2 of the Act: This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: [1] children are entitled to be protected from abuse, neglect and harm or threat of harm; [2] a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents; [20] Obviously, if a child or children cannot safely be left in the care of parents, then alternate arrangements will have to be made. [21] As can be discerned from the course of the proceedings, in the background in this case was always the hope that if the family environment could be made more satisfactory, then the daughters should be placed back in the care and custody of their parents. It appears, from an examination of the record of the proceedings, that this hope was not realized up to the time the "stated case" came before the court. The scheme of the Act is that a child may be removed from a parent's custody if the child's health or safety is in immediate danger (Act-s.30). The parents are to be promptly notified of the removal and must be advised of the reasons for removing the child. If the child's parents and the representatives of the Director agree that the child may safely be returned to a parent or parents then that occurs, otherwise, the matter goes to a presentation hearing. Notice of this hearing must be given to those affected. Section 33.3 of the Act provides that a presentation hearing is a summary hearing and must be concluded as soon as possible. There was such a hearing in this case soon after the apprehension of the three children. At the conclusion of this type of hearing, the court will either order that the child remain in the custody of the Director, be returned to a parent or parents under supervision, or be returned to the parent or parents without supervision. At the conclusion of a presentation hearing, the court is directed by s. 37 of the Act to set the earliest possible date for a further hearing to determine if the child needs protection. Notice of that hearing is to be given to interested parties. The dates set for the commencement of such hearing must not be more than 45 days after the conclusion of the presentation hearing. [22] At a protection hearing, the parents of the child, the Director, and, if the child is an aboriginal child, a representative of an Indian or aboriginal community are entitled to attend. At such hearing, the court is to determine whether a child requires protection. If it is found that the child needs protection and ought not to be returned to the parents, then the child may be ordered to remain under the Director's supervision for a specified period. The time limits for temporary custody orders are not to exceed three months if the child, or the youngest child who is the subject of the hearing, is under five years of age, or six months if a child is between five and twelve years of age, or twelve months if a child is over twelve years of age when the order is made. Section 45 of the Act provides that the total period of temporary custody should not exceed twelve months if the child was, or the youngest child who was the subject of the initial order, was under five years of age, eighteen months if between five and twelve years old, or 24 months if the child was over 12 years old on the date of the order. However, on application, the court may extend this period, by a specified time limit, in a case where the court considers it is in the child's best interest to do so. Obviously, what happened in the case at bar was that there were numerous continuations of the temporary custody orders made here concerning these children. [23] Section 49 of the Act provides, that not sooner than 60 days before a temporary custody order expires, the Director may apply to the court for what is described as a continuing custody order, which type of order I take to be in the nature of a more permanent disposition. Section 49(5) provides that the court may order that the child be placed in the continuing custody of the Director if there is no significant likelihood that the circumstances that led to the child's removal will improve within a reasonable time or that the parent will be able to meet the child's needs. The result of such order is that the Director becomes the sole guardian of the person of the child and may consent to the child's adoption. A continuing custody order terminates when the child reaches 19 years of age, is adopted, marries, or until the court cancels the continuing custody order. Section 54 of the Act provides that, with the permission of the court, a party to a proceeding in which a continuing custody order was made may apply to the court for cancellation of the order, if the circumstances that caused the court to make the order have changed significantly. The Act also deals with the issue of access to a child in the interim and temporary custody of the Director or another person but those specific provisions are not particularly germane to the case under consideration here. [24] It is clear that in this case we are at what could be described as the interim custody stage. A protection order is in place and has been continued on a number of occasions. As I have observed, it is apparent that throughout the course of the various adjournments, the parties were hopeful that matters might be resolved satisfactorily and the children might be returned to the custody of their parents. Apparently, it was not possible for the parents to satisfy the Director that the children could safely be returned prior to the proceedings that resulted in the order that is the subject matter of this appeal. [25] It seems to me that the Act as framed envisages what I might term an unfolding or sequential process. Initially, something must be brought to the attention of the Director that leads the Director to conclude that the children in question require the intervention of the Director in their lives. In cases where a potentially serious situation is perceived to exist, the Director is empowered to take charge of the children. They are to be promptly brought before a court and, if no resolution that is satisfactory to both the Director and the parents can be worked out within a short period of less than two months, a protection hearing should be commenced. The Director may thereafter be granted temporary custody and, depending upon on how things progress, that order can either be extended, altered or rescinded. The intent of the legislation seems to be that these types of temporary orders should not extend beyond 18 months for children in the age range of these children. However, in appropriate cases, extensions of such orders can be granted by the court. Such extensions were granted in this case. If it turns out that there is no hope for improvement because of an unsatisfactory home arrangement, then presumably a permanent type of order will be sought by the Director and may be granted by a court. [26] Because these cases are evolving situations involving the lives of children and their parents, it is generally not desirable that flexibility in dealing with these matters should be in any way discouraged by the courts. The process should be kept as informal as possible on order to ensure that the interests of the children and the interests of the parents are properly taken account of in what will often be changing and fluid situations. I am not sure however, that I would subscribe, as argued by the appellants, to the theory that these types of proceedings are entirely non-adversarial in nature. It seems to me that very often the Director, representing the interests of the state and seeking to advance the best interests of a child or children, will be required to take a position adverse to the wishes or position of the parents. It is always desirable, as the scheme of the Act makes plain, that, where possible, matters can be worked out to the satisfaction of all concerned. However, absent a consensual resolution, a court will be obliged to make the order or orders it thinks fit based on the state of the current evidence before it. [27] Section 81 of the Act provides that a party may appeal to the Supreme Court from an order of the Provincial Court made under the Act. The time limit for bringing such an appeal is 30 days. With leave of the Court of Appeal, a party may appeal to this Court on a question of law from an order of the Supreme Court. It would have been possible for the appellants in this case to appeal from the original order made at the protection hearing granting custody to the Director. No such appeal was taken. While undoubtedly the question of sexual abuse loomed large in the decision of the judge to grant a protection order, it is clear that there was also a perception at the time that the family household was a rather unsafe environment for these young children. Adult daughters from the former marriage had provided information that could lead the court to be concerned about conditions existing in the home of the appellants. It seemed to be an unsafe environment unless change occurred. [28] Although in this case, it would undoubtedly have been preferable for Mr. Jack to have had counsel at an earlier stage, I do note that Mrs. Jack had counsel from the outset. From my examination of the transcript of the proceedings, it seems to have been common ground that matters were less than satisfactory in the household. Of course, the situation could change for the better as time progressed. While, as I have observed, there can be an adversarial quality to proceedings under this statute, the whole thrust of the Act is clearly aimed at seeking to provide solutions for unsatisfactory home situations including supervisory orders and the provision of support services to assist the parents. [29] It seems to me that to delve too deeply into the rather technical subject of res judicata in this class of case may in the end be an unhelpful course. What matters here will ultimately more concern the present than the past. Evidence has been adduced from witnesses as set forth above. The appellants may not agree with all of that evidence but it seems to me that the proper method and time to take such objection was by way of an appeal of the original order that was made in early 1996. In the absence of any such appeal proceeding, it is my view that that evidence stands in the record as does the original conclusion and order of the judge at the protection hearing. The conclusions at such a hearing necessarily have about them some quality of the provisional but I do not believe that they can be successfully attacked by the methodology sought to be advanced in this court by the appellants. [30] Counsel for the appellants relied upon and referred to the case of New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 and R. and A.S. v. The Director of Children and Families (1999), 125 B.C.A.C. 275. The former concerned an issue of providing funds for access to counsel and has, in my view, no particular application to the situation in this case. The latter was a case where a new allegation was being raised by the Director against a parent and it was held the parent should have an opportunity at any renewed hearing to meet this. That is not the situation here. The case for the Director has always been that, because of risk to the children from disorderly conduct and possible sexual abuse at the home, the family residence was not a safe environment for these young girls. [31] Before making a continuing custody order in relation to children, a court has to consider the past conduct of the parent or parents toward the child, the plan of care, and the child's best interests. As I noted earlier, s. 66 of the Act stipulates that proceedings are to be as informal as possible. In order to avoid the necessity of recalling witnesses, a judge may well conclude that a transcript of what occurred in the earlier hearing can and should be received in evidence. This would be particularly useful in order to avoid requiring young witnesses to give evidence at another hearing. A removal and court proceedings are undoubtedly difficult for a young child and children should be protected from further stress to the degree feasible without infringing on the due process required to protect the interests of the parents. In the instant case for instance, there was a videotape received at the protection hearing that presumably would still be available. [32] If the appellants wish to, for instance, call V.J., it seems to me they can issue a subpoena but I see no need, in view of the state of the record, for the Director to call her in the present proceedings. Her evidence stands in the record as does the videotape evidence. [33] As the Ontario Supreme Court [Divisional Court] pointed out in the case of Children's Aid Society of Ottawa (City) v. M.(G.) (1978), 3 R.F.L. (2d) 226, it could undermine the effectiveness of the judicial process if findings made in previous hearings are not to be given proper effect. The key finding at the initial hearing in this case was that these children were in need of protection at that time. Absent an appeal, I do not consider that finding is presently open to attack. One way of considering this matter is perhaps to put it in the context of onus or the burden of leading evidence. If the appellants conceive that they wish to revisit some fact or facts that they perceive as underpinning the earlier conclusion that the children were in need of protection, then that burden should devolve upon them. It, however, must not be lost sight of that the central question must be the present situation and what order is presently to be made. A judge hearing the matter is in the best position to determine the parameters of relevant evidence having regard to those considerations. I would again refer to the case of Children's Aid Society of Ottawa (City) v. M.(G.), wherein the court observed that a judge can consider the previous proceedings to assist in putting more recent evidence in perspective and to assist with a proper disposition of the current application. [34] One difficulty that I perceive in the case at bar is the lack of any factual basis for the rulings made by the learned Provincial Court judge who was asked to address the questions stated. The judgment rendered on those questions was, in essence, affirmed on the appeal to the Supreme Court. Just what is it that the appellants seek to lead by way of evidence? To that question, the record here discloses no satisfactory answer. One could imagine an issue arising concerning the reliability of a witnesses' evidence as exemplified by the case of Toohey v. Metropolitan Police Commissioner, [1965] A.C. 595, where it was held that a party ought to be able to adduce evidence from a physician to demonstrate that a witness suffered from a defect or abnormality of the mind that affected the reliability or the evidence of that witness. It could also be the case that evidence could be tendered concerning the question of the bias of a witness who gave evidence. I believe it is fundamentally undesirable to adopt the procedure that was adopted in this case because to do so runs the risk of deciding in an evidentiary vacuum that which can only be decided by the judge presiding at the hearing concerning a continuing custody order. That said however, it was probably a correct view of matters for the Provincial Court judge here to conclude that the appellants ought not to be permitted to attack the validity of the original order made at the protection hearing. That order was made by a court of competent jurisdiction and was not appealed. However, at the continuing custody hearing that has yet to be held, the task of the judge will be to decide on the proper disposition of the custody of the children of the appellants. To place a priori fetters on the evidence of the appellants at such a hearing without a knowledge and appreciation of what that proposed evidence is seems not entirely fair. These are issues that ought to be decided by the hearing judge who is afforded, by the terms of the Act, a broad discretionary power as to how to proceed. The judge hearing the matter may, after considering any proposed evidence and the arguments of the parties, reach a conclusion similar to that set out in the order here appealed from but such conclusion would be founded on what occurs at the hearing. As I earlier observed, I take the scheme of the Act to envisage an evolving process whereby a court is enabled, on the best evidence currently available, to decide what should be done concerning the custody and care of children. A court would usually wish to consider what has emerged in past hearings as well as the current situation. Section 66 of the Act, in my view, affords a hearing judge considerable scope to craft a proceeding that is appropriate in the circumstances of the particular case. The procedure undertaken here has, I fear, the capacity to unduly ossify this class of proceedings. [35] In order to ensure that this matter can be dealt with in an unfettered way by the judge hearing the application for a continuing custody order, I would partially allow this appeal and set aside that portion of the order appealed from that concerns what evidence may be adduced by the appellants at any continuing custody hearing. In that way, the court hearing the proceeding is in no way fettered from doing what appears to be appropriate and in conformity with the letter and spirit of the Act. I do not consider this a case for costs since success is divided and it appears to be very much a matter of first impression. I would order the matter to be now remitted to the Provincial Court for adjudication in conformity with these Reasons. "The Honourable Mr. Justice Hall" I AGREE: "The Honourable Madam Justice Rowles" Reasons for Judgment of the Honourable Mr. Justice Finch: [36] I have had the advantage of reading in draft form the reasons for judgment of Mr. Justice Hall. I agree that the appeal should be allowed to the extent he has suggested, for the reasons set out in paragraphs 30 and 31 of his judgment. "The Honourable Mr. Justice Finch"