Court File and Parties
Court File No.: 407/08 Date: 2014-10-28 Ontario Court of Justice
Between:
Windsor-Essex Children's Aid Society, Applicant,
— AND —
T.R. and R.P. Respondents.
Before: Justice Barry M. Tobin
Heard on: September 4, 2014
Released on: October 28, 2014
Counsel
Frank Philcox for the applicant Society
J.J. Avery for the Respondent, T.R.
R.P. on his own behalf
Michael Frank for the Office of the Children's Lawyer, legal representative for the child
TOBIN J.:
RULING ON MOTION
[1] Introduction
The respondent, T.R., ("mother"), moves for an order setting aside my Order of February 3, 2014, ("Order") which made her daughter K.E.P., born […], 2010, ("child") a ward of the Crown with no access.
[2] Procedural Basis
The mother brings this motion pursuant to Rule 59.06(2)(a) of the Rules of Civil Procedure which allows the court to set aside an order on the basis of "facts arising or discovered after it was made". She also asks that the child be placed in her care under "strict terms of supervision".
1: ISSUES RAISED
[3] Issues
The issues raised on this motion are:
a) whether Rule 59.06(2)(a) should apply in this child protection matter;
b) if Rule 59.06(2)(a) does apply, should the Order be set aside on the basis of facts arising or discovered after it was made; and
c) if set aside, should the child be placed in the mother's care subject to terms of supervision.
2: FACTS
[4] Status Review Application
The Society brought a Status Review Application, issued March 1, 2012, concerning the child in which it sought a finding that the child remained in need of protection and an order making her a ward of the Crown without access.
[5] Mother's Response
In the mother's Answer, she pleaded that the child was not in need of protection. In the alternative, if found to be in need of protection, she requested that the child be returned to her care.
[6] Trial and Judgment
This case was tried over eight days before me between September 30 and December 10, 2013. Reasons for Judgment were released on February 3, 2014. The child was found to remain in need of protection and was ordered to be a ward of the Crown without access to the respondents.
[7] Reasons for Judgment
The reasons for judgment stated the following with respect to the continued finding:
[58] I find that the child remains in need of protection under subclauses 37(2)(b)(i) and (ii). There is a risk this child is likely to suffer physical harm in the manner described in these subclauses based upon the following:
There has been a longstanding pattern of non-compliance with terms of supervision orders designed to protect the children. [The mother] failed to sign a release when asked. She would not refer [her other children] D. and C. to Windsor Regional Children's Centre. She introduced the children to a new partner in circumstances where she was not to do so. She had a history of being in relationships where there was domestic violence. She allowed [R.P.], a person the court ordered should not have contact with the children, access to the children. She has not undertaken counselling recommended for her; and
Failure to demonstrate an ability or a willingness to abide by terms of supervision raises the risk of harm to the child. [The mother] has, in many respects, failed to address the causes for the child being in need of protection. Her actions speak to her exercising poor judgment.
And the following with respect to disposition:
[92] The observations and opinions of Dr. McGrory were clear and have been accepted by the court. [The mother] did not engage in meaningful counselling. Dr. McGrory identified challenges for [the mother]: addressing her low self-esteem, ability to cope, poor problem solving ability and vulnerability in relationships. These have not been addressed though [the mother] has been given considerable time to do so. She allowed contact with Mr. Pitt at a time when she was about to have K. returned to her care. She also was seeing other males at that time, contrary to the term of supervision that male persons be vetted.
[94] [The mother] did not exercise access diligently so as to demonstrate she was committed to developing and strengthening a relationship with K. Many of her reasons for not attending access demonstrated that visiting with K. was not a primary priority for her. The evidence of the access supervisors, whose duty it was to observe and record access visits, did not disclose that when access took place the child's relationship and emotional ties to her mother and siblings was being enhanced.
[95] The child has been in care for over three years. Permanency planning is essential.
[96] [The mother] has not addressed those risk factors which give rise to the child remaining in need of protection. I am not satisfied that the permanency planning so required by this child can be achieved if she is in the care of the respondent mother. The child's emotional needs would not be met by having her placement in the care of her mother be uncertain. The significance of the child-centered approach is that good intentions are not enough. The test is not whether the parent has seen the light and intends to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child's life with the result that in giving the parent another chance, the child would have one less chance: Children's Aid Society of Winnipeg (City) v. R., (1980), 19 R.F.L. (2d) 232 (Man. C.A.). There has to be some demonstrated basis for a determination that the parent is able to parent the child without endangering her safety: Children's Aid Society of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1504 (Ont. Sup.Ct.).
[97] K. remains in the care of the same family with whom she has resided since she was brought into foster care, the day after her birth. While this family has not decided whether they will adopt her, the evidence is and I accept that if they choose not to adopt her, K. can remain with them until she is adopted. This plan would allow for continuity in the child's care.
[8] Appeal and Stay Motion
An appeal from the Order was filed by the mother on March 5, 2014. Within that appeal proceeding, the mother brought a motion in the Superior Court of Justice seeking a stay of the "no access" provision of the Order. This motion was dismissed by Justice Quinn on April 17, 2014.
[9] Withdrawal of Appeal
The factum filed by the mother on this motion states that subsequent to the dismissal of the stay motion, a motion to dismiss the appeal was brought "for want of transcripts." The appeal was then withdrawn by the mother on a without costs basis.
[10] Fresh Evidence
It was after the appeal was withdrawn that the mother states fresh evidence came to her attention.
3: ANALYSIS
3.1: Should Rule 59.06(2)(a) Apply?
[11] Procedural Framework
The mother did not make any reference to the Family Law Rules in her notice of motion or factum as a basis upon which the relief requested could be brought.
[12] Applicable Rules
The Family Law Rules apply to all cases heard in courts that exercise jurisdiction under the Child and Family Services Act, Part III: See Family Law Rules, subrule 1(2). The Order that the mother seeks to set aside was made under Child and Family Services Act, Part III.
[13] Supplementary Application of Rules of Civil Procedure
It is only where the Family Law Rules do not cover a matter adequately that a court may give directions and, if the court considers it appropriate, decide the matter by reference to the Rules of Civil Procedure: See Family Law Rules subrule 1(7).
[14] Mother's Submission
The submission on behalf of the mother is that evidence came to her attention after the Order was made which may undermine important findings of fact upon which it was made and consequently it must be set aside. It is submitted by the mother that the best interests of the child are put in issue as a result.
[15] Family Law Rules Provisions
The Family Law Rules do not contain any provisions that allow an order to be set aside on the basis of facts arising or discovered after an order is made. Rule 25(19) is formulated as follows:
25(19) The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
[16] Distinction Between "Change" and "Set Aside"
Rule 25(19) provides that a court may change – though not set aside – an order in certain enumerated circumstances but not on the basis of facts arising or discovered after the order was made.
[17] Rules of Civil Procedure Rule 59.06(2)(a)
The ability of a party to make a motion to set aside an order in civil proceedings on the basis of "facts arising or discovered after [an order] was made" is provided for in Rules of Civil Procedure, Rule 59.06(2)(a). This Rule is formulated as follows:
59.06(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain other relief than that originally awarded,
may make a motion in the proceeding for the relief claimed.
[18] Tsaoussis Principles
The use and limits associated with Rule 59.06(2) were considered in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41 O.R.(3d) 257 (Ont. C.A.) where the court, at para. 39 stated:
A party who would otherwise be bound by a previous judgment can bring an action to set aside that judgment. ...Rule 59.06 allows that kind of relief to be claimed by way of a motion in the original proceedings. The rule does not, however, confer the power to set aside a previous judgment, nor does it articulate a test to be applied in deciding whether a previous judgment should be set aside. The rule merely provides a more expeditious procedure for seeking that remedy: Glatt v. Glatt, supra; Braithwaite v. Haugh (1978), 19 O.R. (2d) 288 (Ont. Co. Ct.), at 289. The language of Rule 59.06 does, however, provide insight into the varied factual circumstances which may give rise to motions to set aside a judgment.
[19] Absence of Expeditious Procedure in Family Law Rules
The Family Law Rules do not provide for this expeditious procedure.
[20] Court's Assumption
Society counsel concedes that for the purpose of this motion Rule 59.06(2)(a) should apply. As the issue was not argued by counsel, I will assume without deciding that it is appropriate to consider this motion by reference to Rule 59.06(2)(a).
3.2: Should the Order be set aside?
Legal Principles
[21] Test for Newly Discovered Evidence
Case law decided under rule 59.06(2)(a) establishes that a party wanting to set aside an order on the basis of new or newly discovered evidence must offer evidence that meets the following conjunctive criteria:
The evidence would probably have changed the result at trial;
The evidence must be apparently credible; and
The evidence could not, with reasonable diligence, have been obtained at the time of the trial.
See Dawi v. Armstrong (1992), 17 CPC (3d), 196 (O.C.G.D.) [affd. (1993), 17 C.P.C. (3d), 196 n (Ont. C.A.)]
[22] Onus on Moving Party
The onus is on the moving party to demonstrate that all of the criteria are met so as to justify making an exception to the fundamental rule that final judgments are final.
[23] Strict Application in Child Protection Matters
This rule is to be applied strictly because finality is the norm and exceptions are rare: See Tsaoussis (Litigation Guardian of) v. Baetz, supra; L.R.F. v. D.M.H., [1999] O.J. 2757 (Ont. S.C.J.) at para 15. This strict application must be the case where the order sought to be set aside was made under the Child and Family Services Act Part III. Any decision to set aside the order must take into account the paramount purpose of that Act which is to promote the best interest, protection and well-being of children. The evidence presented in support of the set-aside request must be sufficiently cogent – in the context of these legal principles – to upset the finality and permanency of the plan in place that was made in the child's best interests.
Legal Principles Applied
[24] Evidence Relied Upon
The mother relies upon the evidence now offered by R.P., K.K. and L.D. as being new or newly discovered.
[25] Evidence Replying to Trial Findings
The mother also provided evidence that purports to reply to the findings made in the judgment following the trial. This evidence is not helpful on this motion to set aside the Order. A misapprehension of the evidence could have been dealt with in an appeal.
(i) The Evidence of R.P.
[26] R.P.'s Status
The respondent, R.P., is the child's father. He attended the first three days of the trial though his counsel attended throughout. He did not give evidence at the trial.
[27] Evidence at Trial Regarding R.P.
Evidence regarding R.P.'s involvement with the mother and her children was given at the trial by Society workers. In summary, this evidence was as follows:
a) The Society and mother planned for the child to be placed in her care beginning February 28, 2012.
b) On February 27, 2012, the day before the scheduled return, R.P. made a number of disclosures to the Society worker.
c) He advised that during the previous few months he had been attending the mother's home and had access with the mother's three children, contrary to existing court orders.
d) This disclosure was corroborated by a video on his cell phone which depicted the interior of the mother's apartment and the child, D., seated on a couch.
e) As well, R.P. allowed the worker to listen in on a telephone conversation between him and the mother. Their conversation was consistent with their having an ongoing relationship.
f) He was able to describe a recent event in the mother's home where one of the children lost a tooth.
g) He told the worker about the steps that he and the mother took to hide his presence from Society workers, including having the children refer to him by a different name.
h) Society workers interviewed the children who made statements that were admitted at trial which corroborated R.P.'s disclosures.
[28] Impact on Placement Decision
On the basis of this information provided to the society worker the child was not returned to the mother's care as had been planned.
[29] R.P.'s Affidavit
R.P.'s affidavit, sworn May 5, 2014, was filed in support of the mother's request to set aside the Order. The new or newly discovered evidence contained in the affidavit and relied upon by the mother is as follows:
a) He was not aware of the damage his disclosures made to the Society would have upon the mother.
b) He acted out of jealousy.
c) He had no reason to be jealous.
d) He did not attend for access or visit with the children at the mother's home rather they spoke with each other by telephone. That is how we learned one of the mother's other children lost a tooth.
e) The video he showed to the worker was sent to him by the mother and then downloaded to his telephone. That is how it came to be in his possession and on his telephone.
[30] Insufficiency of R.P.'s Evidence
The evidence now presented by R.P. is not sufficient to support setting aside the Order for three reasons; it is not new evidence, it would not have changed the outcome, and his credibility is in question.
It is not new evidence
[31] Prior Knowledge of Recantation
The mother was aware that R.P. recanted his statement to the worker well before the trial took place. R.P. swore an affidavit on March 9, 2012 wherein he retracted everything he had said earlier in 2012 to the worker. This evidence could have been put before the court by compelling R.P. to testify at the trial. The mother has not shown that R.P.'s evidence, as contained in his affidavit sworn May 5, 2014, could not have been put forward by the exercise of reasonable diligence.
[32] Video Evidence
The mother was aware that the Society was relying upon the video found on R.P.'s telephone in support of its case. She did not deal with this evidence as part of her case. R.P.'s evidence on this point is not evidence that would constitute facts discovered after the Order was made.
It would not have changed the outcome
[33] Multiple Factors in Finding
The finding that the child remained in need of protection and the disposition order were based on facts in addition to the disclosures made by R.P. His disclosures of February 27, 2012 precipitated the apprehension but were but one factor in the determination that the child remained in need of protection and the disposition made was in the her best interests.
His credibility is in question
[34] Credibility Issues
Even if R.P.'s evidence could somehow be considered as fresh evidence, there is another reason I doubt it would change the result. Because he changed his story, R.P.'s credibility would be an issue.
[35] Application of Ladd v. Marshall Principles
In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, the court considered an appeal from a trial judge's decision not to re-open a trial after reasons were released but before the formal judgment was entered. In that case, on the motion to reopen, a witness swore an affidavit admitting to certain activities that helped the defendant's case. This evidence was contrary to evidence he had given on discovery and the basis for the motion to re-open. The court upheld the trial judge's decision not to re-open the case in part because of the problem with the witness' credibility. In upholding the trial judge, the court made reference to Lord Denning's comments in Ladd v. Marshall, [1954] 1 W.L.R. 1489 (C.A.) at p. 1491, as being applicable:
It is very rare that application is made to this court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.
We have to apply those principles to the case where a witness comes and says: "I told a lie but nevertheless I now want to 'tell the truth.'" It seems to me that the fresh evidence of such a witness will not as a rule satisfy the third condition. A confessed liar cannot usually be accepted as being credible. To justify the reception of the fresh evidence, some good reason must be shown why a lie was told in the first instance, and good ground given for thinking the witness will tell the truth on the second occasion. [Emphasis added.]
[36] Application to R.P.
R.P. was not under oath when he made the disclosures to the Society but he knew they would affect the return of the child to the mother. He explained that he acted at first instance because he was jealous. Knowing how important this evidence would be at the trial his explanation for not attending – because he was working out of town – is not a good excuse. It does not explain sufficiently why he would tell the truth now. His initial disclosures, recanting before trial, failing to attend the trial, and evidence presented now affects his credibility, especially in light of the evidence presented at the trial which corroborated his disclosures. It would have been helpful had he provided evidence that corroborated his recanted version of events.
(ii) The Evidence of K.K.
[37] K.K.'s Affidavit
The evidence of K.K., contained in her affidavit of May 8, 2014, was known to the mother before the trial but not put in evidence by her trial counsel. She did not testify at the trial. The mother submits that the evidence of K.K. is important for the court to review.
[38] K.K.'s Description of the Mother
Ms. K.K.'s evidence is that she is a neighbour and friend of the mother and describes her as, "an amazing mom."
[39] K.K.'s Evidence Regarding September 26, 2013
The important evidence is that the housing complex where she and the mother lived with their respective children was "plagued by two people that made false allegations on a regular basis about many of us." One of the allegations was that these persons, R.V. and T.V., reported that someone was at the mother's house on the morning of September 26, 2013. The Society acted on this information at that time. Ms. K.K.'s evidence is that the allegations made by the V.s about the mother regarding that morning were not true because she saw that the mother's older children, C. and D., and her son were walked to school by the mother on September 26, 2013 at 8:30 a.m.
[40] Prior Knowledge of K.K.'s Evidence
Counsel for the Society referred to the affidavit of Justine Danford, sworn October 2, 2013, in which the Society's investigation of the events of September 26, 2013 was detailed. T.V. was referred to in that investigation. The mother also swore an affidavit, sworn October 17, 2013. This affidavit was before Justice Phillips on the motion to bring C. and D. into care, heard October 28, 2013. Attached to the mother's affidavit is a letter from her neighbour, Ms. K.K., setting out what she saw the morning of September 26, 2013.
[41] K.K.'s Evidence Not Newly Discovered
It is clear that the evidence of Ms. K.K. was well known to the mother at the time of the trial. It is not new evidence as contemplated by the Rule 59.06(2)(a). This rule does not come into play where, as in the present case, the plaintiff has a change in position regarding the importance of information already known: See Hall v. Powers et al. (2005), 80 O.R. (3d) 462 (Ont. S. C. J.).
(iii) The Evidence of L.D.
[42] L.D.'s Status and Non-Appearance at Trial
Mr. L.D.'s is the mother's boyfriend and has been so since prior to the trial. Evidence as to his involvement with the mother was provided by her at the trial. He was not called as a witness by her. No explanation was given on this motion that explains why his evidence was not presented at the trial.
[43] L.D.'s Evidence Not Newly Discovered
His evidence offered on this motion relates to events that occurred prior to the trial. The mother has not demonstrated that this evidence could not have been obtained by reasonable diligence prior to the trial.
4: DECISION
[44] Conclusion
The evidence put forward by the mother does not support setting aside the Order and thereby upsetting the finality and the permanency plan now in place which was made in the best interests of the child.
[45] Motion Dismissed
The mother has not met her onus under Rule 59.06(2)(a). Consequently, the motion is dismissed.
Released: October 28, 2014
"original signed and released"
Barry M. Tobin Justice