Court File and Parties

Court File No.: FO-12-423-0000

Date: 2015-02-27

ONTARIO COURT OF JUSTICE

FAMILY COURT

IN THE MATTER OF The Child and Family Services Act, R.S.O. 1990, c. C.11

AND IN THE MATTER OF J.M., K.O.M., L.H.M.,

children apparently in need of protection.

BRANT FAMILY AND CHILDREN'S SERVICES (operated by The Children's Aid Society in the County of Brant)

Applicant

- and -

A.M., RICHARD WEMP, SIX NATIONS BAND COUNCIL, J.B., G.F.

Respondents

Reasons for Judgment

BEFORE THE HONOURABLE JUSTICE K. A. BAKER

on February 27, 2015, at BRANTFORD, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

Appearances

• N. Soucie – Agent for the Applicant
• V. Singh – Counsel for A.M.
• B. Maracle – Six Nations Band Council
• D. Maltby – Counsel for J.B.
• L.S. – In Person
• N. Soucie – Agent for the Office of the Children's Lawyer

Transcript Information

Transcript Ordered: February 27, 2015

Transcript Completed: March 24, 2015

Ordering Party Notified: March 24, 2015

Decision

BAKER, J. (Orally):

This is a motion by the Respondent mother to set aside the judgment from the motion for summary judgment, rendered September 29th, 2014. This motion was originally returnable on December 17th, 2014, but it could not be completed on that day. It was accordingly adjourned for continuation of argument to February 24th, 2015.

The maternal grandmother, L.S., who is an added party to this proceeding, supports the motion. The motion is opposed by the Society, the OCL, the Respondent father, Mr. J.B., and the Band. Ms. D.D., the paternal grandmother of the child, J.M., and an added party, has not filed material for this motion and did not attend on argument of the motion.

Jurisdiction to Reopen

The preliminary, and indeed threshold issue, in this matter, is whether the court has jurisdiction to revisit the decision previously rendered on the motion for summary judgment. The Society did not articulate a specific position on the issue, and suggests that this is something of a grey area in law.

The Respondent father and the OCL take the position that I became functus as of the rendering of the judgment. The moving party says that I am not functus, and that I have jurisdiction to re-visit the judgment. To this end, Mr. Singh relies on the decision of Chandler v. Alberta Association of Architects, 1989 2 SCR 848. I do not find that decision of much assistance as it deals with the jurisdiction of administrative tribunals to re-open hearings following the issuance of a decision.

There are, however, a plethora of authorities that indicate that a court has the discretion to re-open a case after judgment has been rendered and before the final order has been issued. In Degroote v. CIBC, 1998 O.J. No. 1696, a decision of the Ontario Court General Division, the Court noted as follows:

It is well established that a court may re-open proceedings after judgment has been rendered, but before a final order has been issued. The issue with which cases have concerned themselves is how to balance the need to ascertain the truth upon full disclosure of all material facts with the need to preserve the integrity of the litigation process, and prevent an abuse of its process. Both needs are directed at ensuring justice is achieved.

The same principle was enunciated in Castelrigg Investment Incorporated v. Lamm, a decision of the Ontario Superior Court of Justice. That case is often cited for the proposition that courts have an untrammeled discretion to re-open a case prior to judgment being entered to prevent abuse and to further the fundamental objective that a miscarriage of justice does not occur. The criteria by which this discretion should be exercised or considered, was considered in 671122 Ontario Limited v. Sagaz Industries, 2001 SCC 59. Sagaz enunciated a two-step process of assessment. First: Would the evidence probably change the result? Second: Could the evidence have been obtained using due diligence? Justice Major, speaking for the majority of the court in Sagaz, set out the concern as follows:

"The (trial judge) would, of course, discourage unwarranted attempts to bring forward new evidence available at trial to disturb the basis of a judgement delivered, or to prevent a litigant from after discovering the effect of a judgment, to re-establish a broken down case with the aid of further proof."

It's clear, however, that the requirement of due diligence in seeking the evidence is not to be stringently applied if it might give rise to a miscarriage of justice, see Degroote v. CIBC.

The basic principles applicable to motions to re-open are summarized in Castelrigg Investments. These are as follows:

1. There is an unfettered discretion in the court to ensure that miscarriage of justice does not occur.
2. Before the order is entered, the trial court is in a better position than an appellate court to exercise discretion to reconsider evidence. This is because the trial judge knows what factors influenced his decision.
3. The authorities are clear that a court can always re-open a matter prior to the order being drawn up and entered.
4. The trial court is in the best position to judge what bearing the new or further evidence would have had on the evidence already heard.
5. Once a litigant has obtained a judgment, he ought not be deprived of it, except for very solid grounds.

At the commencement of this motion, the order on the motion for summary judgment of September 29th, 2014, had not been issued and entered. Accordingly, at that date, the court had a wide discretion to re-open the hearing despite the pronouncement of judgment. It would appear, however, that no steps were taken by counsel to request that the issuance of the order be held in advance. Accordingly, on December 30th, 2014, the order on the motion for summary judgment was issued.

I was not directed by counsel to any authority to re-open a hearing subsequent to the order having been issued and entered, although I invited submissions on that point. There are good reasons to think that the interest of finality weighs more heavily toward not re-opening after the order is entered. Indeed, it is not clear on the authorities that there is indeed jurisdiction to re-open after the order has been issued and entered.

Here, however, I am prepared to accept that the door remains open to reconsider the judgment on the motion for summary judgment. This is because when the motion was commenced on December 17th, 2014, the order had not, in fact, been issued and entered. It seems to me that this administrative step set into action some two months before, when the order was drafted and sent for approval, should not be permitted to constitute an artificial barrier to the potential to re-open the hearing.

In taking this view, I'm mindful of the application of Charter principles, including the principle of fundamental justice, to child protection matter. I'm also mindful of the paramount purpose of the Child and Family Services Act, which is the furtherance of the best interests, protection, and well-being of children. Children's best interests will generally be furthered by ensuring that there is no miscarriage of justice because of an absence of evidence.

In this regard, I'm also mindful of the principles set out in the decision of Castelrigg, and that, as the court hearing the motion for summary judgment, I would be best positioned to know all the factors that influenced my decision and what bearing new evidence would have had on the evidence already heard. Accordingly, I find that I am not functus and that I have the discretion to re-open the hearing of the motion for summary judgment.

Analysis of the Motion to Reopen

The primary basis for the Respondent mother's motion to re-open the summary judgment relates to evidence about hair follicle testing results that were received only in late October 2014, after the hearing of the motion. The mother says that this evidence was not discoverable by her and would probably change the outcome of the motion. Although the mother also complains that she was somehow deprived of a right of cross-examination of the components of the Society affidavits. I find this argument devoid of merit. If the mother had wished to seek cross-examination of the witnesses prior to the motion, she should have taken steps to do so with some diligence prior to the hearing of it. She did not do so, and she cannot now complain that her own decision in that regard somehow gives her the right to re-open the hearing of the motion for summary judgment.

The mother also argues that there is an error in a factual finding in relation to the date of a positive drug test, and that that, too, merits re-opening. For reasons I will elaborate, presently, I find this argument unpersuasive. Moreover, if this was a substantial basis for the mother's argument to re-open, I would be of a mind that her attack on the outcome of the motion for summary judgment ought to be premised as an appeal as opposed to a re-opening of the case for new evidence.

Background

Some background on the hearing of the motion for summary judgment is required. The child protection application underlying this matter has been before the court since December 12th, 2012. The motion for summary judgment was brought with an initial return date of July 2nd, 2014. It was served on the mother on May 16th, 2014. Mother swore a responding affidavit on June 26th, 2014. To that affidavit, the mother also attaches an earlier affidavit, sworn July 31st, 2013. She includes a number of professional reports and some certificates of program completion. She does not say anything about the use of the drug, THC, and she does not indicate that she has a medical licence to consume same.

In her affidavit of June 26th, 2014, the mother confirms that she did not attend for hair follicle testing in February 2014. She says, therein, that she attended, "subsequently", for the test and was awaiting the results. She did not provide a specific date of attendance or name the testing facility. She did not set out what steps, if any, she took to try to secure the results prior to that date.

The motion was then heard and judgment was rendered on September 29th, 2014. The court found that there was no genuine issue requiring trial in relation to the application for deemed orders of custody for each of the children. The issue of access post the making of the custody orders was reserved and scheduled for a focused hearing. The parties were required to provide an affidavit setting out a proposal for supervised access within designated timelines.

In her affidavit addressing access, sworn October 31st, 2014, the mother raised the issue of late receipt of the drug test results. She reiterated that she had attended for drug testing and provided a copy of the results which showed that a sample was taken May 30th, 2014, with a cover letter for that being dated June 7th, 2014. The results are positive for THC. There's no evidence to provide any indication of the meaning of the levels shown on that test result.

It is in that affidavit, for the first time, that the mother discloses that she has a THC "medical prescription", although she does not provide any proof of such a prescription other than her own bald assurance. Mother goes on to say that she had earlier, and prior to the motion for summary judgment, sought the drug test results from Gamma-Dyncare Medical Laboratories, but the laboratory had refused to release them. It is uncontroverted that the Society provided the drug test results to the mother on October 27th, 2014, approximately one month after the judgment was rendered.

In her affidavit, sworn December 2014, in support of this motion, the mother recapitulates her evidence about the receipt of the drug test results in her efforts to secure the results prior to the motion. She then goes on to complain, "The judgment for the motion for summary judgment relied on the notion that I am a drug user and that I am uncooperative with the Society." In neither of her affidavits, did the mother offer any explanation as to why she is prescribed THC or what physician prescribed it, neither does she provide a copy of the prescription or a note from any physician confirming its existence.

Due Diligence Analysis

I have reservations with respect to the mother's evidence about her efforts to secure this drug test result from May 30th, 2014, prior to the hearing of the motion for summary judgment. I say this for two reasons. First: The mother's original affidavit of June 26th, 2014, which was sworn not quite a month after the mother participated in the testing, did not mention that she'd undertaken any of her own inquiries to obtain the results. The mother would have known from the Society worker's affidavit of May 5th, 2014, that the mother's lack of attendance for hair follicle testing was being identified as an issue for the Society. The mother had an obligation to put her best foot forward as of the date of the motion for summary judgment. There's no record of correspondence between the mother's counsel and the Society showing the mother trying to follow-up to secure the results. There's no correspondence of the mother's counsel to the tester seeking the results.

The motion itself is heard almost four months after the mother's attendance for the drug testing. There was ample time for follow-up. It's hard to see that there was an exercise of any real diligence to secure these test results. But, given the significance of the matter, and the importance of considering all evidence in child protection cases, I am prepared to relax the requirement of due diligence here and consider the second prong of the test to re-open the hearing. This brings me to, probably, the most critical question in this proceeding: Would the evidence of the test results from May 2014 probably change the outcome?

Drug Use Findings in Original Judgment

The mother's drug use is referenced in the judgment on the motion for summary judgment on four occasions. At page six, it's noted that the Society had been involved with the mother intermittently since 2006 due to identified concerns of the mother's criminal involvement, including assault-related matters, domestic violence between the mother and Mr. J.B., and the mother's drug use.

At the bottom of page nine of the judgment, the mother's position is recounted and it is noted that the mother, "Says drugs are no longer an issue." At page 10, it's noted that the Society was asserting that the mother had not attended for hair follicle testing to confirm that she was, in fact, drug free, and that after a positive urine test for cocaine in January 2014, the mother actively avoided hair follicle testing.

The court's analysis commenced at page 10 of the judgment. The issue of drug use and failure to attend for hair follicle testing is addressed beginning at the last paragraph of page 15. These, the relevant passages are as follows:

Aside from these very grave concerns, there's also the issue of drug use by the mother. For the period from July 2013 through October 2013, the mother's results were positive for cocaine on two occasions, benzodiazepine on two occasions, and fentanyl on one occasion. On July 20th, 2014, she tested positive for cocaine use which she later denied. On the face of the denial, the Society set up a hair follicle test on February 6th, 2014. Mother did not attend from which I cannot help but draw an adverse inference. A subsequent referral was made on April 23rd, 2014. The mother says she did not attend. The Society says the mother did not attend, the mother says she did, although she provides no specifics and has no tests results. The mother has an obligation to put her best foot forward on a motion for summary judgment. She says she attended for hair follicle testing in April 2014. She reasonably ought to have been able to provide some confirmatory evidence of having done so. She has not. She ought reasonably be able to say, with some clarity, when and where the sample was taken. She does not. Cooperation with hair follicle testing was a clear expectation set out in the plan of care. The mother's refusal to cooperate implies that she knows the results will not be favourable, but it also reflects poorly on her ability to cooperate with a supervision order so as to mitigate any potential concerns.

Other Protection Concerns

The rest of the reasons for judgment address the other protection concerns. These include the following:

A) Horrific injury suffered by the children, K.O.M. and L.H.M., when they were in the care of the mother.

B) The mother's judgment in leaving the children with G.F., while she was in jail on the weekends, knowing that G.F. was angry, and aggressive, and abused drugs.

C) The mother's failure to conclusively and immediately end her relationship with G.F. after the abuse to the children, and her disingenuous representations to the court and the Society about the state of that relationship.

D) The mother's violent assault of another woman in front of both the subject children and the victim's children.

E) The mother's refusal to accept any responsibility for the harm that was caused to the children.

All of these issues were characterized by the judgment as, "Very grave concerns." To this, we simply added the concern of drug use. There is no dispute that, as found in the judgment, the mother tested positive for drugs on various occasions between July 2013 and October 2013. There's no dispute that a urine test result showed positive for cocaine in January 2014, although the mother does dispute the accuracy of that test result.

There is no dispute that the mother refused to go to hair follicle testing in February 2014 to address her denial of the cocaine use in January 2014. That failure to attend in February 2014 certainly supports the conclusion that the mother knew the results would not be favourable, because the mother knew it was an expectation of the plan of care for her to do so, at that time. It also reflected poorly on her willingness to cooperate with a supervision order.

Would New Evidence Change the Outcome?

Would the court probably have drawn any other conclusion on the issue of whether there was a genuine issue requiring trial if it knew on September 29th, 2014, as it does now, that the mother had attended for drug testing on May 30th, 2014, and had tested positive for THC? The answer, I have determined, is conclusively, no. Attendance for this test would not have done anything to address the numerous other grave concerns set out in the judgment. Considering the totality of the evidence, the issue of drug use was relatively adjunct. Although the attendance on May 30th, 2014, for the test did demonstrate some cooperation by the mother with the Society's expectations, and could potentially show an improved prospect of future cooperation, this event has to be taken in context. First: The mother attended for hair testing some four months after the original positive cocaine urine test that precipitated the demand. Second: The test results raised further questions, given the positive results for THC. The mother had not disclosed this usage prior to the test result being received. She did not offer any confirmation of the legitimacy of this drug use, and she did not explain the reason for its prescription. A positive result for THC without meaningful explanation from an individual with historical drug use issues is, itself, concerning. Aside from that, there was also evidence set out in the judgment noting the status quo with respect to the children. This, of course, would be relevant with respect to their best interests. At the time of the judgment, the children had been out of the mother's care for some 21 months. It's now some 26 months that the children have been out of the care of the mother. J.M. is in the paternal grandmother's care and doing well. K.O.M. and L.H.M. have been with their father, and, apparently, are flourishing with him.

The mere fact that the mother did attend for hair follicle testing on May 30th, 2014, and that this testing was negative for drugs, other than THC, does not give rise to a genuine issue requiring trial given the totality of the evidence in this matter.

Alleged Factual Error

This brings me to the issue of the error set out at line 28 of page 15 of the judgment wherein it is stated that, on July 20th, 2014, the mother tested positive for cocaine use, which she later denied. The fact of a positive test was actually earlier referenced in the judgment at page 10 when the date of it was correctly stated as January 2014. Although the paragraph on page 15 says July 20th, 2014, it then goes on to talk about the society setting up a hair follicle test in February 2014 due to the mother's denial of the positive result. When read in context, it's clear that the stated month of July was an instance of the court misspeaking rather than a misunderstanding of the evidence. The totality of the paragraph makes it clear that the positive result was understood to be January and not as stated July. One mistaken, misspoken word in the totality of an 18-page judgment does not, in my view, give rise to a genuine issue requiring trial.

Disposition

Accordingly, the motion to set aside the judgment on the motion for summary judgment, and to re-open that hearing and remit the matter for trial, is dismissed.

... WHEREUPON THESE PROCEEDINGS WERE CONCLUDED

Certificate of Transcript

I, Celina Boswell, ACT #: 6654207774, certify that this document is a true and accurate transcript of the recording of CAS v. A.M. et. al. in the Ontario Court of Justice held at 44 Queen Street, Brantford, ON, taken from Recording 0211_4_20150227_092615, which has been certified in Form 1.

Date: March 24, 2015

Celina Boswell ACT# 6654207774

(For Videoplus Transcription Services)

*This certification does not apply to the Reasons for Judgment that were judicially edited.