S.H. v. Newfoundland and Labrador (Child and Youth Services)

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: S.H. v. Newfoundland and Labrador (Child and Youth Services), 2025 NLCA 27 Date: July 29, 2025 Docket Number: 202401H0006 RESTRICTION ON PUBLICATION: There is a Publication Ban on the names and any other identifying information of the children referred to herein, as well as the names of their biological parents, relatives and foster families pursuant to section 55 of the Children, Youth and Families Act. BETWEEN: S.H. APPELLANT AND: MANAGER CHILD YOUTH SERVICES, ZONE B RESPONDENT Coram: D.E. Fry C.J.N.L., K.J. O’Brien and G.L.C. Noel JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Family Division 202102F0599 (2024 NLSC 10) Appeal Heard: June 18, 2025 Judgment Rendered: July 29, 2025 Page 2 Reasons for Judgment by: K.J. O’Brien J.A. Concurred in by: D.E. Fry C.J.N.L. and G.L.C. Noel J.A. Counsel for the Appellant: Shane R. Belbin and Stephanie J. Dicks Counsel for the Respondent: Krista M. Atkins Authorities Cited: CASES CITED: Newfoundland and Labrador (Child and Youth Services) v. K.M. & S.H., 2024 NLSC 10; L.B. v. Newfoundland and Labrador (Child and Youth Services), 2024 NLCA 36; T.R. v. Newfoundland and Labrador (Child, Youth and Family Services), 2014 NLCA 19; M.K. and R.P. v. Newfoundland and Labrador (Child and Youth Services), 2018 NLCA 34; L.H. v. Newfoundland and Labrador (Child, Youth and Family Services), 2023 NLCA 32; B.J.T. v. J.D., 2022 SCC 24, [2022] 1 S.C.R. 668; R. v. Charles, 2024 SCC 29; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; J.F. v. Child, Youth and Family Services, Health and Community Services Board-St. John’s Region, 2006 NLCA 35; Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519; J.B. (Re), 1998 CanLII 18071 (NLCA); R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; Brake-Patten v. Gallant, 2012 NLCA 23, leave to appeal to SCC refused, 34861 (1 November 2012); Fishery Products International Ltd. v. Rose, 2018 NLCA 65; R. v. Marquard, [1993] 4 S.C.R. 223; Malaviya v. Dhir, 2023 ONSC 1993; Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517; MCYFS v. A.C. and C.W., 2012 NLTD(F) 7; M.A.B. v. M.G.C., 2022 ONSC 7207. STATUTES CONSIDERED: Children, Youth and Families Act, SNL 2018, c. C- 12.3, sections 10(1)(l), 10(1)(n), 8, 9(1), 9(2), 9(3), 51(2); Interpretation Act, RSNL 1990, c. I-19, section 16; Divorce Act, RSC, 1985, c. 3 (2nd Supp), section 2(1). K.J. O’Brien J.A.: [1] SH appeals a court order made following a protective intervention hearing under the Children, Youth and Families Act, SNL 2018, c. C-12.3 (the “Act”) placing his child in the continuous custody of the Manager of Child and Youth Services (the “Manager”). SH alleges that the judge erred in assessing hearsay evidence from the Page 3 child’s mother and in determining that there was “violence” to support her finding that the child was in need of protective intervention pursuant to the Act. [2] I would dismiss the appeal. SH has not shown that the judge made any reversible error in relation to either her assessment of hearsay evidence or her determination of violence. Even though the mother did not participate in the hearing, and was thus not available for cross-examination, the hearing was fair, the judge made no legal errors, and her decision was supported by the evidence. BACKGROUND [3] The Manager became involved with the parents when the mother was pregnant with the child because of concerns about the mother’s drug use and violence between her and SH. The child was removed from the parents by warrant at approximately eight months of age and has been in the care of the Manager ever since. The mother subsequently gave birth to a second child, who was removed by warrant at birth. SH is not the father of the second child. [4] The protective intervention hearing dealt with both children. The judge found that both were in need of protective intervention and placed them in the continuous custody of the Manager. At the time of the hearing in November 2023, SH’s child was almost three years old, and the sibling was about six months old. The siblings had been living together in foster placement and had bonded with one another. The Manager’s plan was, and still is, to profile the children for adoption as siblings. [5] The mother did not participate in the protective intervention hearing. Although she had a lawyer, the lawyer had been unable to contact the mother for some time. The mother’s lawyer was present for the hearing but given that he had no communication with his client, his participation was limited. The mother has not appealed the continuous custody order for either child. [6] SH participated in the protective intervention hearing with a lawyer. His lawyer cross-examined the Manager’s witnesses: a social worker with the department of Children, Seniors and Social Development (“CSSD”) and a social worker with Daybreak Parent Child Centre (“Daybreak”). SH testified at the hearing and called three further witnesses: his counsellor, his friend, and his mother. [7] The judge gave a written decision following the hearing (Newfoundland and Labrador (Child and Youth Services) v. K.M. & S.H., 2024 NLSC 10, the Page 4 “Decision”). Given that this appeal involves SH’s child only, I will briefly summarize the judge’s reasons for granting continuous custody of that child, focusing on her findings related to SH. THE JUDGE’S DECISION [8] The judge found that the child was in need of protective intervention under subsections 10(1)(l) and (n) of the Act: 10. (1) A child is in need of protective intervention where the child: (l) is living in a situation where there is violence or is living in a situation where there is a risk of violence; (n) has a parent who exercises access whose actions show a propensity to violence or who has allegedly killed or seriously injured another person; [9] The judge found that there was violence in the relationship between the mother and SH and that SH was the perpetrator of that violence (Decision, at para. 83). She found that “violence” for the purposes of the Act includes coercive control and that the evidence demonstrated that SH had engaged in a pattern of coercive control of the mother. The coercive control consisted of controlling her medications, trying to keep her away from her family, preventing taxis from being dispatched to her residence, and relentlessly calling and texting her, sometimes when the mother was seeking professional assistance, such as attending at the Royal Newfoundland Constabulary (RNC) headquarters to seek an Emergency Protection Order (EPO) or meeting with the Daybreak social worker (Decision, at paras. 84-90). [10] The judge further found that SH had a long-established pattern of engaging in relationships with physical violence. Although SH had denied perpetrating domestic violence, he testified that he was the victim of abuse by partners in the past “time and time again” because of drugs and addiction. He further stated that he had not called the police when he was victimized because the aggressor could change the story and he would be looked at as the abuser (Decision, at para. 49). [11] SH testified to three specific events of physical violence involving former intimate partners. The first was in 2007, when he “smacked” the person he was dating because she “smacked” him first and robbed his pills and money. The second was in 2021 when his ex-girlfriend came to his house because she wanted drugs and held a knife to her throat and to his stomach. SH testified that he hit her hands with Page 5 a child’s wooden softball bat in self-defence. SH did not acknowledge the third incident as having happened. He testified that he was falsely charged in the summer of 2022 with grabbing a woman by her hair and throat, and threatening to kill her. SH says that the woman is extorting him for $500.00 to drop the charges, which remain outstanding. [12] The mother had reported several incidents of physical violence from SH to CSSD social workers, but she had also at times recanted those statements, particularly when she was reconciled with SH. SH’s counsellor testified that both SH and the mother had spoken about violent incidents between them and then they later said that those incidents had not happened. SH denied all allegations of physical abuse against the mother although he stated that he had once had to restrain her by putting his arms around her because she was high and had clawed at his face. [13] SH submitted that he had only ever acted in self-defence and so the incidents of physical violence to which he admitted should not be considered “violence” for the purposes of the Act, as they were not his fault, and the child had not witnessed them in any event. The judge disagreed: [91] The evidence demonstrated [SH’s] pattern of engaging in relationships with physical violence. Whether incidents of physical violence occurred in self-defence, as [SH] alleged regarding two of his past relationships, [the child] would have been exposed to the violence had he been present. [SH] alleged that these episodes were caused by the women who had drug additions. If this is so, they show [SH’s] pattern of partnering with women who struggle with addiction and engage in violence. This description could apply to his relationship with the Mother and his explanation of the incident he described when the Mother was high and clawed his face. [92] [SH’s] testimony that he no longer engages with people beyond a select few was not sufficient to convince me that his longstanding pattern of partner choice would not repeat itself in the future and put [the child] at risk if he were in [SH’s] care. [14] The judge further considered SH’s submission that he had changed and that concerns with his behavior that had existed at the time of the child’s removal did not exist today. There was significant evidence before the judge, reviewed in the Decision, of SH behaving aggressively with social workers, using abusive and insulting language when speaking to them, being belligerent and irate, and making demands and repeatedly contacting them, unreasonably, when he felt those demands were not being met. Several social workers reported being concerned for their safety. The judge heard direct evidence from the Daybreak social worker of SH engaging in such behavior at the commencement of the protective intervention hearing. Page 6 [15] The judge found that the evidence did not demonstrate that the issues with SH that existed at the time of the child’s removal had ceased to exist. She continued at paragraph 101: …Throughout his testimony, [SH] denied issues, now and in the past. Therefore, he did not bring evidence that demonstrated that issues, which I find existed at the time [the child] came into care, have been addressed. What the evidence did demonstrate was a lack of change in [SH’s] ability to work with the Manager to address protection concerns. [The CSSD social worker who testified] said she could not even have a conversation with [SH]. [16] While the child was in the Manager’s care, SH’s access to the child was very limited. Although the judge acknowledged that in the seven or eight weeks just prior to the hearing SH had consistently attended his one-hour per week of supervised access with the child without issues being noted, she considered it “too little, too late” (Decision, at paras. 59, 117). SH had a poor record of attendance at access visits, had gone significant periods with no access, and had not always demonstrated good parenting behavior when he did have access (Decision, at paras. 54-58). ISSUES [17] SH raises the following issues on appeal: 1. Did the judge err in assessing the reliability of hearsay evidence of the mother? 2. Did the judge err in finding that there was “violence” by applying too rigid a definition that failed to consider that his controlling behavior toward the mother was done with good intentions or that his involvement in physical altercations was in self-defence? STANDARD OF REVIEW [18] The standard of review in child protection cases has been considered by this Court many times, most recently in L.B. v. Newfoundland and Labrador (Child and Youth Services), 2024 NLCA 36. The scope of appellate review is narrow. [19] For questions of law, which includes whether procedural fairness was observed, the standard is correctness. For findings of fact and discretionary findings, the appellate court will show deference unless the hearing judge made a manifest or Page 7 material error. In considering whether there was a manifest or material error, the appellate court will not retry the case but will review the record generally to satisfy itself that there is evidence to support the conclusions the hearing judge reached (L.B., at para. 17; T.R. v. Newfoundland and Labrador (Child, Youth and Family Services), 2014 NLCA 19, at para. 18; M.K. and R.P. v. Newfoundland and Labrador (Child and Youth Services), 2018 NLCA 34, at para. 10; and L.H. v. Newfoundland and Labrador (Child, Youth and Family Services), 2023 NLCA 32, at paras. 50-53). [20] Assessing the best interests of children is a highly contextual and fact-driven exercise that involves a high level of judicial discretion. An appellate court is not permitted to interfere with the hearing judge’s findings absent a material error, a serious misapprehension of the evidence, or an error in law (B.J.T. v. J.D., 2022 SCC 24, [2022] 1 S.C.R. 668, at paras. 52-57). [21] SH categorizes the errors he alleges by the judge as manifest or material errors reviewable on the correctness standard. PURPOSE AND GENERAL PRINCIPLE UNDERLYING THE ACT [22] Before addressing the issues directly, it is helpful to begin with the purpose and general principle underlying the Act as they must inform this Court’s analysis on appeal. [23] The purpose of the Act is to promote the safety and well-being of children and youth who are in need of protective intervention by offering, where available and appropriate, services that are designed to maintain, support and preserve the family where it is in the best interests of children and youth (s. 8). [24] The Act must be interpreted and administered in accordance with the principle that the overriding and paramount consideration in a decision made under the Act is the best interests of the child or youth (s. 9(1)). [25] The Act gives a non-exhaustive list of factors to be considered in determining a child’s best interests, of particular relevance in this case are the following subsections from section 9(2): (a) the child’s or youth’s safety, health and well-being; (b) the child’s or youth’s physical, emotional and developmental needs; Page 8 (c) the child’s or youth’s relationship with family or a person significant to the child or youth; (g) the importance of stability and permanency in the context of the child’s or youth’s care; and (h) the importance of family as the preferred environment for the care and upbringing of a child or youth. [26] Where there is a conflict between subsections (2)(a) and (h), paragraph (2)(a) shall prevail (s. 9(3)). ISSUE 1: DID THE JUDGE ERR IN ASSESSING THE RELIABILITY OF HEARSAY EVIDENCE OF THE MOTHER? [27] The Manager filed an affidavit of CSSD social worker Doris Gibson. The affidavit included information that had been documented in the CSSD file by other CSSD social workers over the period of the Manager’s involvement with the family. The notes from the CSSD social workers included their own observations as well as information they had obtained from the mother and from other people with knowledge of the family. [28] Ms. Gibson was present in court and SH’s counsel cross-examined her on her affidavit. However, because the mother was not present, SH’s lawyer could not cross-examine her on any of her statements that had been recorded in the CSSD file and included in the affidavit. Nor could the lawyer cross-examine any of the other CSSD social workers who had recorded in the CSSD file what they saw and heard, as they were not present either. [29] Affidavit evidence from a CSSD social worker that includes hearsay statements from other sources is regularly used in protective intervention hearings. The use of such evidence is permitted by the Act: 51. (2) In a proceeding under this Act, a judge may admit and act upon (a) the evidence, including hearsay, that the judge considers relevant and reliable in the circumstances; […] Page 9 (d) the notes and other documentation made in a departmental file in relation to a child, a youth, his or her family or placement; [30] There is no question that the hearsay evidence in this case was relevant. At issue is whether it was reliable pursuant to section 51(2)(a). [31] SH does not take any issue with the judge relying on out-of-court statements recorded in Ms. Gibson’s affidavit about what other social workers saw or heard. He acknowledges that both the social workers, who made the observations and recorded them in the CSSD file, and Ms. Gibson, who reviewed the file and presented the evidence in her affidavit, are regulated professionals under a professional duty to be honest and accurate. However, he objects to the judge’s use of the mother’s out-of- court statements as recorded by those same professionals. [32] The mother’s statements are “double hearsay” as there are two “links” in the hearsay chain. The first link is from the mother to the social worker who heard what she said. The second link is from that social worker to Ms. Gibson. The social workers who heard the mother relayed what they heard to Ms. Gibson via the CSSD file. [33] While acknowledging that the judge could have relied upon the mother’s hearsay statements if she considered them “relevant and reliable” in accordance with section 51(2)(a) of the Act, SH submits that the judge failed to apply a proper reliability analysis to both “links” of the hearsay chain or that she made an error in principle in applying her analysis. [34] The judge addressed the reliability of the hearsay evidence primarily in the following portion of the Decision: [71] The hearsay evidence from Doris Gibson I find was both relevant and reliable. It was compiled from CSSD’s files relative to the parties and in consultation with case notes and prior workers for the parties. The information was gathered in the course of the social workers’ employment duties for which they had educational and professional training. Social workers are governed by their professional and ethical obligations. [72] The same cannot be said of hearsay from the Mother’s friends, for example, that was given by [SH]. These people had no professional or ethical obligation to gather and report information accurately. While the information was relevant, I find it was not reliable. Page 10 [73] Counsel for [SH] argued that the hearsay evidence from the social worker regarding the Mother’s statements about [SH] assisting her with addiction is credible, but the Mother’s statements about violence against her by [SH] are without credibility and unreliable. I find no basis upon which to consider the Mother’s statements on one issue but not another. The statements by the Mother were made to social workers, or other professionals, in the course of their duties. Further, there was often independent evidence which corroborated the Mother’s statements. For example, [the Daybreak social worker] and [SH’s counsellor] both testified about their concerns about [SH’s] controlling behaviours as a result of what they personally witnessed or what was reported to them directly by the Mother. Analysis of Issue 1 [35] I agree with SH that the judge had to assess both links of the double hearsay chain before concluding that the mother’s statements were reliable. However, I disagree with SH that the judge’s reasons reveal that she failed to assess both links or that she otherwise made any error in principle. When read holistically, the Decision demonstrates that the judge assessed the reliability of the mother’s statements independently from the reliability of the CSSD social workers’ record of those statements, that she was aware of credibility concerns regarding the mother, and that she did not rely on any statements from the mother that were not corroborated by other evidence. I will now explain why the judge was entitled to do as she did. [36] Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible because it is often difficult for the trier of fact to assess whether it is trustworthy. This is because hearsay statements are usually not given under oath, the trier of fact cannot observe the declarant’s demeanor while making the statements or easily investigate the declarant’s perception, memory, narration, or sincerity, and the statements cannot be tested through cross-examination. There is thus a risk that such evidence may be afforded more weight than it deserves (R. v. Charles, 2024 SCC 29, at para. 44; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 20-21; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 35). [37] However, because some hearsay evidence presents minimal dangers and its admission would assist accurate fact finding, categorial exceptions to the rule excluding hearsay developed through the common law over time. Eventually, a more flexible approach to hearsay developed through the case law. Today, under the principled exception, hearsay can be admitted into evidence at common law when the party tendering it demonstrates the twin criteria of necessity and threshold Page 11 reliability are met on a balance of probabilities (Bradshaw, at paras. 22-23; Khelawon, at paras. 2, 42, 47). [38] For child protection proceedings in this province, the common law approach to hearsay evidence has been superseded by section 51(2) of the Act. [39] Unlike the common law principled exception to hearsay, section 51(2) does not require that hearsay evidence be necessary to be admitted. This is consistent with the purpose and general principle of the Act, which focus on the best interest of children. For example, social workers who have added information to a CSSD child protection file may be reasonably available to testify, thus negating the necessity of admitting the hearsay evidence. But requiring all those social workers to attend in court would undoubtedly be burdensome to the child protection system and likely to cause delay and other impacts that would not be in the best interest of children. [40] This Court considered a predecessor section to section 51(2), which does not differ materially from the present version, in J.F. v. Child, Youth and Family Services, Health and Community Services Board-St. John’s Region, 2006 NLCA 35, and commented on how the word “admit” in that section should be interpreted: [20] It is not without significance that section 7 [now, section 9 of the Act] requires, not only that the Act be administered in accordance with the principle that “the overriding and paramount consideration in any decision made under this Act shall be the best interests of the child”, it also requires that the Act “shall be interpreted” in accordance with that principle. That coupled with the general direction in section 16 of the Interpretation Act, that every Act “shall be considered remedial and shall receive the liberal construction and interpretation that best ensures the attainment of the objects of the Act”, bears on the manner in which the words “admit” and “transcript”, in subsection 50(2), are to be interpreted. I conclude, therefore, that the interpretation of subsection 50(2) should not be so strict that it would prevent recognition of the remedial nature of the legislation or prevent according to the legislation the liberal construction and interpretation that would best ensure the attainment of the Act’s objects. Neither can it be such as would prevent a court from applying the principle that the paramount consideration in any decision made under the Act is the best interests of the child concerned. [Emphasis in original]. [41] The Court in J.F. went on to comment on how the section gives a judge wide discretion to accept evidence not tested by the normal strictures of adversarial proceedings, such as cross-examination, while respecting the need to ensure procedural fairness: Page 12 [21] I would also conclude, from the whole of section 50, that judicial proceedings under the Act are not to proceed on the basis of the same rules and practice regime as conventional adversarial court proceedings, recognizing always the necessity to ensure procedural fairness. They are to be held in private and are to be as informal as a judge may allow. The section as a whole gives the judge wide discretion to accept evidence not tested by the normal strictures of adversarial proceedings. Presumably this is to assist in ensuring that the best interests of the child receives paramount consideration, and the objects of the Act are thereby achieved. [Emphasis in original]. [42] So, while procedural fairness is required, child protection hearings have greater procedural flexibility than do criminal trials, for example. As noted by the Supreme Court of Canada in Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519, at paragraph 98, the state’s protective purpose in apprehending a child is clearly distinguishable from the state’s punitive purpose in the criminal context, namely that of seeing that justice is done with respect to a criminal act. These distinctions should make courts reluctant to import procedural protections developed in the criminal context into the child protection context. [43] The procedural flexibility with respect to hearsay in child protection hearings was recognized by this Court in J.B. (Re), 1998 CanLII 18071 (NLCA), prior to the enactment of section 51(2) or any similar predecessor section: [120] While it is true that [the judge] did not conduct a formal voir dire each time it was sought to introduce this type of evidence, the fact that he dealt with the question of admissibility in his judgment demonstrates that he addressed his mind to the issue and made decisions respecting admissibility by reference to the proper test. While the holding of a voir dire may be a requirement in the criminal context where a jury trial is being held, (R. v. Meaney (A.J.) (1996), 145 Nfld. & P.E.I.R. 306; 453 A.P.R. 306; 111 C.C.C.(3d) 55 (Nfld. C.A.), per O’Neill, J.A., at pp. 79-80 [C.C.C.]), a judge sitting alone on an inquiry under the Child Welfare Act has greater flexibility as to how and when he or she should deal with the issue of admissibility of hearsay provided the issue is properly addressed at some point before the final decision. [121] Although he did not discuss in detail the evidence that could support a finding that the requirements of necessity and reliability had been met, it can be presumed, in the absence of a clear contrary indication in the record suggesting a different result, that the judge properly applied the law to the facts. [Emphasis in original]. [44] SH submits that paragraph 73 of the Decision, quoted above, reveals that the judge erred by relying on two flawed lines of reasoning: (i) by considering the mother’s statements reliable because they were made to social workers in the course Page 13 of their professional duties; and (ii) by considering that the mother’s repeating the statements to more than one social worker made them more likely to be reliable. [45] I agree with SH that it would be an error to consider a statement reliable simply because it was said to a social worker, without any other procedural safeguards to substitute for testing the evidence or further guarantees that the statement is inherently trustworthy (see Bradshaw, at paras. 27-28). I also agree with SH that repeating a statement to more than one person does not make it more likely to be true. However, I disagree with SH that the Decision reveals that the judge erred. SH’s argument rests on too narrow an interpretation of paragraph 73. [46] A judge’s reasons must be intelligible, be responsive to the issues in dispute, explain why a decision was made, and permit effective appellate review. Appellate courts must read reasons holistically, in the context of the evidence, the arguments and the trial, and with an appreciation of the purpose for which they were developed (R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; Brake-Patten v. Gallant, 2012 NLCA 23, leave to appeal to SCC refused, 34861 (1 November 2012); Fishery Products International Ltd. v. Rose, 2018 NLCA 65). [47] Reading paragraph 73, in the context of the Decision as a whole, particularly paragraphs 71 and 72 (also cited above), it is clear that the judge was alive to the fact that the mother’s statements were double hearsay. The judge heard testimony from Ms. Gibson about the mother’s statements that had passed through the intermediary link of the other CSSD social workers. The judge also heard testimony from SH about the mother’s statements that had passed to him through the intermediary link of the mother’s friends. The judge compared and considered the reliability of each intermediary link, the social workers and the mother’s friends, finding that the latter was unreliable because, unlike the social workers, the friends were under no professional or ethical obligation to gather and report information accurately. [48] The judge also considered the reliability of the first link, that of the mother. The reasons and the record demonstrate that the judge was aware of credibility concerns with the mother. The mother’s credibility was strongly challenged by SH’s lawyer (Transcript, November 10, 2023, at pp. 197-199). Ms. Gibson’s affidavit documented numerous incidents when the mother had initially denied drug use and later admitted to it, or drugs were found present in a drug screen (Appeal Book, Tab Page 14 6, Gibson Affidavit, at paras. 9, 29, 43, 48). The judge noted in the Decision that the mother had been inconsistent in her statements about violence by SH: [31] There have been occasions when the Mother recanted her statements about violence by [SH]. Doris Gibson said that when the parties were separated the Mother disclosed safety concerns. When they were together, she recanted. The social worker said that this is common for those have experienced trauma, abuse and victimization. [49] The phenomenon referenced by the social worker is well-known and was recognized by Justice L’Heureux-Dubé of the Supreme Court of Canada over 30 years ago writing in dissent in a case involving a child’s testimony in R. v. Marquard, [1993] 4 S.C.R. 223, at page 270: In a sense it is information which can be compared to such well-recognized phenomena among victims of sexual abuse or domestic violence as recantation of the reported assaults and delay in reporting which also, if weighed without knowledge of the particular context in which they occur, reflect negatively on the credibility of the witness. [50] As noted, the purpose of the Act is to promote the safety and well-being of children. Therefore, during child protection proceedings a judge should be alive to this dynamic and not dismiss allegations of violence as unreliable simply because there has been a pattern of asserting and recanting. A social worker’s observations of family dynamics, including any pattern of recantation of allegations of violence, may be particularly important for a judge to consider in assessing risk to children. Social workers are trained professionals whose duties under the Act include investigating and making an initial determination as to whether a child is in need of protective intervention, as such, they are particularly attuned to indicators and patterns of family violence. [51] That does not mean that a judge will accept all evidence from social workers, nor conclude that all recanted accusations of violence are trustworthy. Further, that hearsay evidence is sufficiently reliable to be admitted does not automatically mean that the judge will rely upon that evidence in making findings. The judge must ultimately decide what weight, if any, to give to such evidence having assessed it against all the other evidence presented. This assessment of whether, and to what degree, the evidence should be believed and relied on to decide issues in the case is referred to as “ultimate reliability” (Khelawon, at paras. 3, 50; Bradshaw, at para. 39). Page 15 [52] In the present case, although the judge did not articulate a separate analysis of threshold reliability and ultimate reliability, from the “Analysis” section of the Decision it is clear that the judge did not ultimately rely on information contained in hearsay statements from the mother that was not either (1) corroborated by observations of social workers; or (2) admitted to by SH. [53] As will be discussed further with respect to Issue 2, the judge found that violence for the purposes of the Act includes coercive control. She found that SH admitted to incidents of coercive control (Decision, at para. 87) . To the extent that she used the mother’s reporting of coercive control, the judge relied on incidents that had been witnessed by social workers: [90] The Mother reported, and various social workers witnessed, repeated and relentless calling and texting from [SH]. I find this occurred on some occasions when the Mother was seeking professional assistance, such as when she was at RNC headquarters regarding an EPO or meeting with [the Daybreak social worker] regarding Daybreak. At best, these were overtly controlling behaviours by [SH]. At worst, they were repeated attempts by him to not only control her, but to prevent her from obtaining help from professionals. [54] SH had also acknowledged the coercive and controlling behavior, although he did not characterize it as such. For example, the judge reviewed his evidence about the mother’s visit to the RNC: [41] In December 2021, the Mother went to the Royal Newfoundland Constabulary (“RNC”) about an EPO. She told [SH] she was going there. [SH] acknowledged that while the Mother was in RNC headquarters, he called her 23 times in 21 minutes from an unknown number, because the mother had his numbers blocked. He described the calls as “one after the other”. He told me he called the Mother repeatedly because he had washed her clothes and someone was going to drop them off to her. He went on to say that it was completely out of character that the Mother went to the RNC and the fact that she was there was “alarming”. He said there was no reason for an EPO and that it “blew his mind” that the Mother was making the application. He said he never did anything wrong. He said he was the victim. [55] To the extent the judge relied on physical violence, she focused on incidents about which SH testified (Decision, para. 91, quoted above). The judge found that even if SH was acting in self-defence as he claimed, SH had a pattern of violent relationships that she assessed as posing a future risk to the child if placed in SH’s care. The judge did not reference the mother’s claims of physical violence in her analysis. Page 16 [56] In the result, I cannot agree with SH’s submission that the judge admitted and then relied upon the mother’s hearsay statements in their entirety. The judge did not do a separate analysis of threshold reliability by means of a voir dire or otherwise, but she was not required to. As noted in J.B. (Re), sitting in a child protection hearing, the judge had flexibility as to how she dealt with hearsay. What is important is that the hearing was procedurally fair and that the judge properly assessed the reliability of hearsay evidence before she relied upon it for her decision. [57] I am satisfied that the hearing was fair. SH was fully heard and had the opportunity to challenge the Manager’s evidence, which he did. Even though SH did not have the opportunity to cross-examine the mother, I am satisfied that the judge properly assessed the mother’s hearsay evidence with due attention to its potential frailties. [58] When read holistically and in the context of the evidence and SH’s lawyer’s submissions on the mother’s credibility, the Decision demonstrates that the judge assessed the reliability of the mother’s statements independently from the reliability of the CSSD social workers’ record of those statements. She did not treat the mother’s statements as reliable merely because they were given to social workers or repeated. The judge founded her finding of violence or risk of violence on information that was corroborated by social workers’ observations and/or admitted to by SH and thus not contentious. [59] SH has not shown any reversible error in how the judge dealt with hearsay evidence. ISSUE 2: DID THE JUDGE ERR IN FINDING THAT THERE WAS “VIOLENCE” BY APPLYING TOO RIGID A DEFINITION? [60] Both sections of the Act upon which the judge relied to find that the child was in need of protective intervention concern violence. Section 10(1)(l) applies where a child is living in a situation where there is violence or a risk of violence. Section 10(1)(n) applies where a child has a parent whose actions show a propensity to violence. The key distinguishing feature between the sections is that the first focuses on the living environment and the second focuses on the behavior of a particular parent. Page 17 [61] As already noted, the judge’s factual findings that supported her conclusion that the child was in need of protective intervention because of violence concerns were: a. SH engaged in a pattern of coercive control of the mother and coercive control is violence; and b. SH had a long-standing pattern of engaging in relationships with physical violence. [62] In finding that both of the above constituted violence for the purposes of the Act, SH submits that the judge applied too rigid a definition of violence with no room for nuance. [63] Although SH acknowledges that coercive control can be a basis for finding violence, he states that it is an error to conclude that every controlling act constitutes violence. He submits that the judge failed to consider his good intentions and reason for acting as he did toward the mother. He says he was motivated by concern about her drug use and a genuine interest in her well-being. His controlling acts were aimed at keeping the mother away from illegal drugs and from her family, whom he viewed as enabling her drug use. In these circumstances, he states that his actions should not be characterized as violence. [64] With respect to the judge’s findings related to physical violence, SH submits that the judge was required to make a finding on whether his actions were self- defence, as he claimed. As there was no contradictory evidence on this point, he asserts that self-defence was the only conclusion the judge could have drawn and that because he acted in self-defence, these incidents do not show that he has a propensity for violence. He further submits that the judge failed to adequately consider his current relationship status and that the judge wrongfully placed a reverse onus on him. To support this latter assertion, he points to the judge’s statement that his testimony “was not sufficient to convince” her that his longstanding pattern of partner choice would not repeat itself in the future and put the child at risk if left in his care. Page 18 Analysis of Issue 2 [65] The judge addressed coercive control and its role in family violence directly (Decision, at paras. 85-86). She cited and adopted the following passage from Malaviya v. Dhir, 2023 ONSC 1993: [127] Relationships are nuanced, complicated, and evolve over time. Our understanding of domestic violence has also evolved and is reflected in changes to legislation, including the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) and Children’s Law Reform Act, R.S.O. 1990, c. C.12. We now understand that control is no longer just exerted with physical violence but also through the more insidious actions of coercive control. We no longer look to see if a party sustained physical injuries as corroboration of controlling behaviour or power imbalance in a relationship. Coercive control may include acts of emotional and psychological harm for which there may not be any objective evidence. [66] In adopting these comments from Malaviya, the judge recognized that they were not made in the context of child protection and that there is no mention of “coercive control” in the Act. She nonetheless considered it appropriate to interpret the word “violence” in the Act broadly and as encompassing coercive control. [67] The judge did not err in interpreting the word “violence” in sections 10(1)(l) and (n) broadly. Section 16 of the Interpretation Act, RSNL 1990, c. I-19, requires that legislation be considered remedial and receive the liberal construction and interpretation that best ensures the attainment of its objects. As noted, the purpose of the Act is to promote the safety and well-being of children and the Act itself requires that it be interpreted in accordance with the principle that the overriding and paramount consideration in a decision made under the Act is the best interests of the child. [68] The harmful impacts of family violence on children have been well documented in social science literature and recognized in case law. In Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, the Supreme Court of Canada referenced research indicating that children who are exposed to family violence are at risk of emotional and behavior problems throughout their lives (at para. 143). The Court also recognized that the harm can result from direct or indirect exposure to domestic conflicts. Similar findings were made in the child protection context in this province in MCYFS v. A.C. and C.W., 2012 NLTD(F) 7, at paragraphs 45 to 55. Page 19 [69] Because family violence often takes place behind closed doors and may lack corroborating evidence, the Supreme Court of Canada has recognized that domestic violence allegations are notoriously difficult to prove. Therefore, proof of even one incident may raise safety concerns (Barendregt, at para. 144). [70] Amendments to the Divorce Act, RSC, 1985, c. 3 (2nd Supp), that took effect in 2021 include in the definition of “family violence” conduct by one family member towards another that constitutes a “pattern of coercive and controlling behaviour”. In the case of a child, the same definition requires only that the child be directly or indirectly exposed to such conduct (s. 2(1)). Even though the Divorce Act definition of family violence does not apply to child protection proceedings in this province, the 2021 Divorce Act amendments illustrate the evolution of our understanding of family violence referred to by the judge. [71] Although there is no legislated definition of “coercive” or “controlling” in the Divorce Act or in other family law legislation in effect in this province, coercive control has been defined by courts broadly and in a manner that best achieves the objects of the family violence provisions of legislation. In M.A.B. v. M.G.C., 2022 ONSC 7207, at paragraph 183, the court articulated general definitions, drawing from the case law: …Coercive control in familial relations has many faces, and it is chameleon-like in the ways that it can evolve, transform, and ebb and flow over time. Further to the principles of legislative interpretation discussed above, the interpretation of the concept of “coercive and controlling behaviour” should be interpreted in a large and liberal manner that best ensures the attainment of the objects of the family violence provisions of the legislation, which is to protect and promote the safety and wellbeing of family members. To date, the caselaw reflects such a broad and purposive approach to the scope of this type of family violence. A general review of this caselaw indicates that “coercive” behaviour includes conduct that is threatening, intimidating or exerts inappropriate pressure on the other person. Behaviour is broadly being considered as “controlling” if its intent or effect is to inappropriately manage, direct, restrict, interfere with, undermine or manipulate any important aspect of the other person’s life, including their important relationships and their physical, emotional, intellectual, spiritual, social and financial autonomy or wellbeing. [72] In the present case, the judge’s approach to defining “violence” and her assessment of “coercive control” was consistent with a liberal and purposeful interpretation of the terms in the context of the Act and with Canadian courts’ current approach to family violence. She made no error of law. Further, she made no reversible error in applying the legal concepts to the facts of the case. Page 20 [73] The Decision does not demonstrate that the judge concluded that every controlling act constitutes violence. Rather, it reveals that the judge considered the relevant evidence holistically. She considered SH’s evidence, the observations of the social workers, and the mother’s statements that were corroborated by other evidence. It was not a single act that led the judge to conclude that SH was coercively controlling the mother. The judge referenced SH holding the mother’s medications, relentlessly calling and texting her, preventing her from seeing her family, and preventing taxis from being dispatched to her home (Decision, at paras. 87-90). [74] The judge considered SH’s stated intentions. The judge found that SH knew that the mother wanted a relationship with her family and was not happy about his interventions. She did not believe SH’s evidence that he only held the mother’s medications because she asked him to: [89] [SH] told me he held on to the Mother’s medications. I find he did so when not asked to do so by the Mother. I find it unbelievable, and not supported by the other evidence, that the Mother, while in the throes of active addiction, devised a plan for [SH] to hold her medication in order to prevent her abuse of it. The evidence demonstrated that the Mother tested positive for drugs that she was not prescribed. This alleged plan to prevent her from abusing her prescription medication would do little, if anything, to address her use of street drugs or to advance her recovery from addiction. [75] The judge made no reversible error in her consideration of SH’s stated belief that he was acting in the mother’s best interest. That a person considers themselves to be acting for the good of their partner or of the family does not necessarily negate a finding of coercive control. [76] Neither did the judge err by not determining whether SH had acted in self- defence when in physical confrontations with his former intimate partners. The judge decided that she did not need to resolve the issue of self-defence to conclude that SH’s history of partnering in violent relationships created a future risk for the child if living with SH, which is the concern targeted by section 10(1)(l) of the Act. A judge is not required to make exhaustive findings on each incident of alleged violence if doing so is not necessary to decide whether a child is in need of protective intervention. Requiring that a judge resolve exactly what happened in each instance of alleged violence would add unnecessary length and complication to protective intervention hearings and may unnecessarily intrude on the work of the criminal courts. Page 21 [77] Finally, the judge did not place an improper reverse onus on SH. Determining if a child would be at risk if placed with a parent requires that the judge consider the plan proposed by that parent. In this case, SH’s plan was to have the child live with him. As such, the judge had to consider the steps SH had taken to address the risks she identified at the time the child was removed and whether those steps were sufficient to mitigate the identified risks. She did this at some length and concluded SH lacked insight into the issues which gave rise to protection concerns, continued to see himself as a victim, did not take responsibility for his actions, and remained incapable of working with the Manager to address the issues. Ultimately, she decided that the risks she found continued to exist and that SH had not demonstrated skills learned or emotional regulation necessary to mitigate risks to the child (Decision, at paras. 93-104). [78] SH has not established any reversible error in the judge’s definition of violence, her assessment of the evidence, or in her application of the law to that evidence. DISPOSITION [79] For the foregoing reasons, I would dismiss the appeal. The Manager did not seek costs and none are ordered. _______________________________ K.J. O’Brien J.A. I concur : _____________________________ D.E. Fry C.J.N.L. I concur : _____________________________ G.L.C. Noel J.A.