Brant CAS affidavit in backing staff testimony thrown out by judge

Community Action, March 21, 2005

TORONTO -- An Ontario Judge rejected an affidavit in a children's aid case, saying its sole purpose was to bolster the credibility of a former Brant CAS employee "in a way that usurped the function of cross-examination of the former worker and the court's assessment of her credibility."

In granting the motion by the child's mother to expunge the affidavit from the court's continuing case record, Ontario Court of Justice, Lawrence P. Thibideau said the affidavit sworn by Marilee Sherry, a current Brant CAS employee, "does not set out in an independent way the facts and circumstances" that indicates they are "believed to be true by Ms. Sherry based upon her own knowledge and her own investigation" of the case file kept by a former Brant CAS employee, Jenna Heideman.

In the original case, an affidavit, which was sworn by Heldeman when she was a Brant CAS employee, constituted a major portion of evidence for the Brant CAS in a child welfare case and also chronicled her involvement with the child and family for about one year until December 2003.

However, in 2004, Heideman's credibility was jeopardized, when as a witness, in a child welfare case in another jurisdiction for her new employer, another children's aid society, the judge discounted her testimony as entirely probative (i.e. set out to prove an argument) and "called into serious question the veracity and the conduct of Heideman."

In an attempt to repair apparent damage to previous cases in which Heideman appeared for the society, the Brant CAS had Ms. Sherry audit the Heideman files to verify Heideman's findings and evidence contained in her original affidavit.

But Justice Thibideau agreed with the mother's contention that the Sherry affidavit was oath helping, while also noting although Heideman's credibility was disparaged in another case in another jurisdiction, it does not impugne her credibility with this case, and she could be called as a future witness, or her affidavit put before the court by the society.