WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2014-12-10

Court File No.: Toronto CFO 12 10623

Between:

Catholic Children's Aid Society of Toronto, Applicant,

— AND —

M.R. and C.R., Respondents.

Before: Justice E.B. Murray

Heard on: November 26, 2014

Reasons for decision released on: December 10, 2014

Counsel:

• Ms. Mei Chen — counsel for the applicant society
• Mr. Arthur C. Brown — counsel for M.R.
• Ms. Julia R. Vera — counsel for C.R.
• Ms. Helen K. Miller — counsel for the Office of the Children's Lawyer, legal representative for the child

Decision

Murray, E.B. J.:

Introduction

[1] The Catholic Children's Aid Society of Toronto commenced this case in April 2012 alleging that Ms. R. ("Mother") was emotionally abusing her 10 year old daughter, D., by obstructing the child's relationship with her father, Mr. R. ("Father"). The matter came to trial before me in April 2014; the Society was requesting a protection finding under s. 37(2)(f) & (g) of the Act, an order placing D. with Father under the Society supervision, and an order that access to Mother be at the Society's discretion. Evidence concluded on October 3, 2014. I heard from 13 witnesses, including psychologist Dr. Raymond Morris who had conducted an assessment of the family.

[2] By the time I heard final submissions on November 6, 2014, D. had been in care more than two years. I reserved my decision.

[3] On November 26, 2014, the Society brought a motion asking that the trial be re-opened. It wished to file a psychological assessment of D. conducted by Dr. Denise Vallance, and to call Dr. Vallance to give evidence. Mother opposed the motion. Father and counsel for D. from the Office of the Children's Lawyer supported the motion; they had also supported the Society claims in the trial.

[4] I dismissed the motion, giving brief oral reasons, with written reasons to follow.

[5] On November 28, 2014 I gave judgement in the trial, granting the relief requested by the Society.

[6] These are my reasons for denying the Society's request to re-open the trial.

The Facts

[7] Evidence from a Society worker heard in September 2014 established that the Society had considered arranging for a psychological assessment of D. and decided not to do so, determining that the funds for such assessments should be devoted to children with serious emotional or mental health problems. I was advised before the conclusion of the evidence in early October that the Society had reconsidered, and that D. would be assessed sometime later in the month. However, the Society made no request at that stage to adjourn the trial, to allow admission of the report when completed and testimony from Dr. Vallance.

[8] Dr. Vallance's report, dated November 20, 2014, set out the Society's reasons for the referral:

D. was referred for a psychological assessment to evaluate her emotional, behavioural and social functioning in order to answer the following specific questions:

The Society is concerned about possible emotional abuse from D.'s mother and the impact that this has had on D.'s emotional and social development.

What is D.'s view of each parent and how does she feel about herself in her family dynamic?

What generates anxiety in D.? What is the level of this anxiety and how can we support D. in dealing with it?

What are D.'s emotional strengths and needs?

[9] Dr. Vallance conducted her assessment on October 23, 2014, after the evidence in the trial was completed. Dr. Vallance said in her report that she had "a short clinical interview" with D., administered tests to the child, and spoke with the Society's worker and foster mother. In her report Dr. Vallance made recommendations which support the Society's plan—that D. have supervised access to Mother and that she be placed in a "family system where she can relax and have comfort in knowing that her primary caregivers can meet their own emotional needs, rather than feeling the responsibility of having to meet expressed or implied needs of her caregivers". Although Dr. Vallance did not spell it out, in context it is clear that the "family system" to which she refers is Father's home.

The Law

Distinction Between Reply Evidence and Reopening

[10] In Ontario Courtroom Procedure, Justices Michelle Fuerst and Mary Anne Sanderson explain the difference between reply evidence and re-opening of a party's case:

Re-opening is different from rebuttal or reply evidence. Reply is permitted where the opposing party has presented unexpected evidence. The reason for re-opening the case is to adduce evidence which could have been recognized from the outset as necessary to the moving party's case but which has not been adduced.

The Rules

[11] The Family Law Rules contain no provisions dealing with the sequence of calling evidence or the re-opening of a case. Rule 1(7) provides that if a matter is not covered in the Rules, that the matter may be decided by reference to the Rules of Civil Procedure. The Rules of Civil Procedure contain provisions which allow a court to permit a party to re-open her case under some circumstances, but those rules are not comprehensive.

• Rule 52.10 of the Rules of Civil Procedure allows a court to permit a party to prove a fact material to that party's case where the party has failed to prove it through "accident, mistake or other cause". Courts have found that "other cause" contemplates a reason for a failure to adduce evidence at an earlier stage of a trial similar to mistake or accident.

• Rule 53.01(3) gives a trial judge apparently broad discretion to "direct that a witness be recalled for further examination".

[12] Under common law it is recognized that a trial judge has a discretion to permit a party to re-open its case in a number of circumstances. Courts dealing with motions to re-open keep in mind the important principle which prohibits a party from splitting his case. Whether in a civil or criminal trial, the adversarial process requires that a plaintiff (or the Crown) call all the evidence it intends to rely on to make its case. The plaintiff is not entitled to introduce prima facie evidence, and then, if that evidence is weakened by the defence, to adduce further confirmatory evidence. A defendant is entitled to know the case he has to meet, and make considered decisions on what evidence to call in response.

The Criminal Context

[13] Much of the caselaw dealing with the test to be applied on a motion to re-open comes from criminal cases. The Supreme Court of Canada set out a test for the re-opening of the Crown's case in criminal cases in R. v. G. (S.G.), [1997] 1 S.C.J. 70. On such motions, the Crown must:

• establish that the evidence sought to be introduced is material to an issue in the case, and

• explain why the evidence was not adduced earlier, and justify this departure from the normal rules of the adversarial process. An important consideration under this head is whether (or how much) re-opening the trial will prejudice the defendant.

[14] The Supreme Court has held that the ambit of the judge's discretion to allow the Crown to re-open becomes narrower as the trial proceeds because of the increasing likelihood of prejudice to the defendant. After the defendant has begun his case, the discretion is quite limited. Discretion at this stage is generally restricted to situations where the conduct of the defence contributed to the Crown's failure to adduce the evidence or where the Crown made a mistake on a technical and non-controversial issue.

The Civil Context

[15] In criminal cases dealing with motions by the Crown to re-open, protection of the rights of an accused is a primary concern. The overriding concern in dealing with such motions in the civil context is to prevention of a "miscarriage of justice". As one judge observed "The rules and procedures designed for the conduct of trials are designed so that there be equal fairness to all parties on whichever side of the action they may be located". There are cases in which a plaintiff has mistakenly failed to adduce evidence on a crucial point in which the court reluctantly permits him to re-open, subject to paying costs thrown away. There are many other cases in which requests to re-open have been denied to a plaintiff who has been sloppy or has made a strategic decision not to call certain evidence, and wants a second chance to establish necessary facts.

[16] Justices Fuerst and Sanderson suggest that the framework of the test applied in criminal cases on motions to reopen should be applied to civil cases—that "the test for re-opening should be increasingly onerous as the stage of the trial progresses." Within that framework, the test would be least restrictive if a plaintiff's motion to re-open was made after the plaintiff had closed its case, but before the defendant began to lead evidence, tightening after the defendant's case had gone in, and tightening much more after judgement was announced, but before the order was entered. Within that framework, "the essential principle which arises is that….the trial judge should give significant consideration to the concepts of diligence and discoverability", but not be bound by those considerations if a serious miscarriage of justice would occur if the motion to re-open was not allowed.

[17] Factors which a court will consider in civil cases in determining whether to allow a plaintiff to re-open are set out below:

• At what stage of the trial is the motion made?

• Why was evidence not adduced during the party's case? Did the party intentionally omit leading the evidence earlier? Or did the evidence only recently come to the party's attention, despite diligent earlier efforts?

• What is the prejudice to the defendant? A defendant might have conducted his case differently if he had known and had an opportunity to investigate the evidence which is the subject of the motion.

• Can any prejudice be remedied in costs?

• How would a reopening of the case affect the length of the trial? How much evidence would have to be revisited?

• What is the nature of the evidence? Does it deal with an issue which was important and disputed from the beginning, or with a technical or non-controversial point? Does it merely "shore up" evidence led in chief?

• Is the proposed new evidence presumptively credible?

Family and Protection Cases

[18] There are very few reported cases in the area of family or protection law which deal with motions to re-open a trial after the evidence of the parties has been heard and before judgment is pronounced.

[19] In Patterson v. Patterson, O.J. 1145, Justice Mary Jo McLaren refused a motion made by a party brought on the date for submissions in which he asked that the trial be reopened to admit an expert report on retroactive child support calculations. Justice McLaren dismissed the motion, finding that the party had an opportunity to lead this evidence at trial and that the further time which would be required if the evidence was admitted (for cross-examination of the expert and a critique from the opposing party's expert) was not justified.

[20] In Weeks v. O'Connor, 2009 PECA 13, the Prince Edward Island Court of Appeal dealt with a father's appeal from a trial judge's decision in a mobility case. One ground of appeal was the trial judge's failure to permit the father to re-open his case on a motion brought 5 months after the trial ended, but before judgement was rendered. The father wished to introduce evidence of the 14-year-old child's alleged wishes on the proposed move. The Court of Appeal upheld the trial judge, who refused the motion, finding that the evidence could have been obtained before trial, that the evidence was not "presumptively credible", and that the evidence, if admitted, would probably not have affected the outcome of the trial.

[21] In Children's Aid Society of Northumberland v. K.L.H., (2002) O.J. 245 Justice Roger Timms dealt with a motion to re-open a trial at a much later stage in the process—after judgement was pronounced and a notice of appeal filed. I note, however, Justice Timms' observation about the difference between motions to re-open in protection cases, as distinct from other civil cases: "We are not dealing here with a commercial case. It does not simply involve dollars and cents. It is not a case where people can be expected to "get on with their lives".

[22] I found no protection cases which dealt with motions to re-open a trial at the stage at which the Society brought the motion in this case—after evidence was in and submissions made, and before judgement was pronounced.

Analysis

[23] The Society admitted that Dr. Vallance's report could have been produced and placed in evidence during its evidence in chief. In arguing that the trial should be re-opened, Society counsel referred to the purpose of the Act—"to promote the best interests, protection and well-being of children"—and to Rule 2 of the Family Law Rules, which provides that the primary objective of the rules is "to enable the court to deal with cases justly".

[24] Mother's counsel argued that the motion was a blatant move by the Society to strengthen its case, made only after the results of the assessment were known, a move that was highly prejudicial to his client.

[25] Counsel agreed that if the motion was allowed that, at a minimum, two further days of trial would be required. Given the schedules of counsel and the court, this would entail an adjournment of at least 6-8 weeks.

[26] Although Dr. Morris assessed the family in this case, he did not conduct a psychological assessment of D. Such an assessment, provided that its author was subject to proper cross-examination, would have been welcome. However, re-opening the trial to admit this evidence would have resulted in a lengthy delay in making a decision in this case and in a process which would have been very unfair to Mother.

Delay

[27] The issue of delay which may be occasioned by a re-opening of a trial is particularly important in a protection case. The Act emphasizes the importance of timely permanency planning for children, and sets time limits which can only be exceeded if it is in a child's best interests to do so. In this case, by the end of the evidence D. had already been in temporary Society care for a period longer than allowed by the Act. Society counsel argued that it sought to have Dr. Vallance's evidence admitted not to shore up its case, but to help me "understand better" the evidence already received in the trial. I accept that Dr. Vallance's evidence, subject to cross-examination, would have addressed relevant issues and was presumptively credible. However, the argument that D.'s best interests required this evidence to be considered was not tenable.

[28] It was no "mistake" or "accident" that this assessment was not adduced during the trial proper, but the result of a decision by the Society not to commission the assessment. The Society asked the assessor to address one of the essential issues in the case—was Mother emotionally abusing D.? Before the assessment even started, the evidence had concluded. I had heard days of evidence from witnesses, including from Dr. Morris, in support of the Society's case, and Mother had answered that evidence. I agree with Mother's counsel that the timing of the motion to re-open suggests that the Society only decided to attempt to adduce Dr. Vallance's evidence once it had confirmed that the evidence would support their case.

Prejudice

[29] It would have been unfair to Mother to allow a re-opening of the trial. If the Society had followed the appropriate process, Dr. Vallance's report would have been produced and served at least 30 days before trial. Mother would have had the opportunity to consider what evidence she should call with that report in mind. Dr. Vallance's report refers to facts she received from the Society that differ, sometimes significantly, from the evidence which I heard at trial. If Mother's counsel had the report at the appropriate time, other Society witnesses could have been cross-examined on those points.

[30] The Society's cavalier attitude towards fairness to Mother demonstrated by this motion could have long term consequences for this family. The Society's duty in protection cases, included highly contested cases such as this, is to assist parents in caring for their children and to facilitate children maintaining a relationship with their parents in circumstances which protect them from abuse or neglect. In my decision on the Society's application I asked the Society to attempt to work with Mother to obtain the counselling which I found she needs. I contemplated that they would work together to reach a point at which supervised access would not be required. The Society's conduct in bringing this motion, although well-intentioned, will not help it in its work with Mother in the future.

[31] This is far from a case in which a re-opening must be permitted in order to prevent a miscarriage of justice. To re-open the case as requested would have been a disservice to Mother, and, more importantly, to D. For that reason, the motion was dismissed.

Released: 10 December 2014

Signed: Justice E.B. Murray