Written by Randolph Scott
Anyone watching a court crime drama on TV is familiar with the phrase “proof beyond a reasonable doubt.”
This is known as the “standard of proof”, which is the burden placed on the prosecution in obtaining a conviction. What the standard of proof means in criminal matters is that the totality of evidence before the court (whether by judge or jury) would lead a reasonable person, viewing the evidence objectively, to conclude with a high degree of certainty that the accused is guilty of the charged offence. Anything less must lead to a finding of innocence or, where the burden of proof is not met, a dismissal of charges (which is not the same as a finding of innocence).
While this standard works (for the most part) in criminal courts, it is not and cannot be the standard of proof required in civil courts. In litigation matters, the truth is often contested. Varying accounts, recollections, motivations, half truths and outright lies can and do occur, forcing the judge (aka “the trier of fact”) to make a determination on “a balance of probabilities”. This is a lower burden than that which must be met in criminal matters and means a judge will decide for one party or the other on a “probability” that the evidence provided by one litigant is more compelling than that of the opposing party.
This lower standard of proof allows a judge to examine the credibility of the witnesses, the persuasiveness of the evidence and the motivations of the parties in reviewing a contested matter.
For example, in a custody battle where a parent is seeking primary care and control of a child, there is often little evidence leading to a finding that is “beyond a reasonable doubt.” Testimony often comes down to what is often referred to as “he said, she said” litigation. Agreed facts can be more difficult to come by interpretations and recollections can be faulty and the emotions and motivations of a parent or guardian can preclude a clear finding one way or the other.
The judge then will look to the credibility of the parties, the supporting testimony and the extent and persuasiveness of the provided evidence. Credibility may be challenged by inconsistent testimony, misstatement or glossing over of key points, faulty recollection or clear and compelling opposing testimony.
It can often be difficult for a judge to discern who is more truthful. The judge will be compelled then to look at the evidence before the court: the testimony of a party that most adheres to known facts, is credible, consistent and most compellingly refutes the evidence of the opposing litigant. In this way, a judge may find for one parent over the other “on a balance of probabilities” based on the totality of evidence heard and reviewed by the court.
Child protection matters provide many more factors that often call for a standard of proof lesser than that of a balance of probabilities. The subject, be it a child, infant or teen, often cannot or is incapable of speaking up for him or herself and must therefore rely on the judgement and experience of adults in determining the safety of a minor. A home of ongoing drug use, domestic violence, severe mental illness or inadequate care and supervision presents a danger in that the child often lacks an awareness of the extent of the danger and its effect on that child’s “safety, security and development”.
That’s why it is incumbent on the adults around the child to take appropriate steps to protect a child when concerns arise. Neighbours, extended family, family friends, teachers, care providers and police all have a duty to report concerns to relevant authorities, usually a child protection agency. Child protection legislation throughout North America stipulate that concerns MUST be reported immediately to authorities – failure to do so can result in fines, imprisonment or a combination of both.
Where a child protection authority has determined concerns are justified, steps may be taken with a parent to immediately rectify the problem. Truancy, inadequate supervision or inadequate care and control can often be addressed without removing the child from the home. However, ongoing and persistent neglect in these areas can lead to the immediate removal of the child from the family residence.
Where concerns are more immediate and compelling – drug use, dangerously unsanitary or unhygienic home, severe domestic violence, neglect – may compel authorities to seek immediate removal of the child until these concerns are rectified to an extent and a duration that would allow for return of the child to a parent or guardian.
It is in the apprehension and ensuing court involvement that varying standards of proof are utilized to ensure the ongoing protection of the child throughout the court process. These varying standards of proof were examined in the 2013 child protection matter of Alberta v. L.T. In that matter, Justice J.D. Holmes of the Alberta Provincial Court (now know as the Alberta Court of Justice) reviewed the “continuum of thresholds” on which standards of proof rest:
- Suspicion (aka “mere” suspicion)
- Reasonable suspicion
- Reasonable ground to believe
- Prima Facie Case (first impression; deemed correct until proven otherwise)
- Proof on a Balance of Probabilities
- Proof Beyond a Reasonable Doubt
- Truth
Each of these thresholds is based on greater degrees of proof: a mere suspicion is exactly that - an impression or feeling not even based on a modicum of proof, it is an impression or “gut feeling.” Moving down the scale, the “reasonable suspicion” and “reasonable grounds to believe” thresholds both utilize the hypothetical reasonable person test noted above as the standard of proof.
Family courts will use these lower standards of proof where the issue is one of child protection. Intervention is often required beforehand to protect a child from physical or emotional injury by reason that the intervention is to avert potential injury. As Justice Holmes noted, “there need not be evidence of actual harm” at this point, only a reasonable ground to believe so. As many family courts have noted, the purpose of such intervention is child protection, not parental rights.
As can be derived from the list above, “a reasonable ground” is a lower standard than even that of a balance of probabilities.
Consequently, when a child is apprehended the lower standards of proof are there to provide protection while a more thorough investigation by authorities is completed. While this is taking place, these same authorities must apply to the court for ongoing custody of the apprehended child. Where there is an apprehension without the immediate return of the child within 3 days, child welfare authorities are compelled to apply to the court for ongoing care and control of the child. In Alberta this is known as an Initial Custody Application.
Should the child’s guardian, parent or parents be opposed to the authorities maintaining such custody, an Initial Custody Hearing will be scheduled to allow the court to determine whether the child should be returned or remain in the care of the child protection authorities. This hearing must occur within 42 days (6 weeks) of the first court appearance following apprehension.
It is important to note that an Initial Custody Hearing is a “summary hearing”, which is a short, concise and focused proceeding often no more than 1 hour duration. At a summary hearing a narrow issue is reviewed; in this case whether a child should be returned to parental care at this time or remain in the care of the authorities. At this hearing there is a low threshold to be met – that there is a reasonable ground for the child coming into care and further, to remain in such care pending a full hearing on the larger application (i.e. a Temporary Guardianship Order (TGO) or Permanent Guardianship Order (PGO).
For this reason, the Initial Custody Hearing is not a full examination of the need for a TGO or PGO; it is, rather, where the child’s needs are best met pending a TGO or PGO hearing. At an Initial Custody Hearing it is not necessary to provide all the evidence that led to the TGO or PGO application - only that the concerns leading to the apprehension are valid, reasonable and further, it is in the child’s best interests to remain in the care of the child protection authorities. The evidence required at this stage need only be in regard for the need for intervention and the continuation of that intervention pending the court’s review of all the evidence regarding a future TGO or PGO hearing.
And it is at that time where the evidence supporting a TGO or PGO application is heard and reviewed that a court will move to the “balance of probabilities” standard to determine whether the application itself is warranted.
Thusly, in child protection matters, standards of proof will vary throughout the court process. This is in keeping with the court’s primary concern, which is at all times, the best interests of the child.