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: 2015-04-07

Court File No.: Brampton 20039/11

Between:

The Children's Aid Society of the Region of Peel, Applicant,

— And —

M.H., Respondent

and

S.H., Respondent

Before: Justice J.W. Bovard

In Chambers filed on: February 20, 2015

Reasons for Judgment released on: April 7, 2015

Counsel:

• L. Shaw — counsel for the applicant Society
• M. Osadet — counsel for the respondents

BOVARD J.:

The Motion

[1] This is a ruling on the Society's 14B motion filed on February 20, 2015. It is contained in their Motion Brief, Volume 1, tab 1. The Society asks the court to reopen a child protection trial after all the parties closed their cases, but before final submissions have been made. The purpose of the reopening is for the Society to be able to adduce evidence that the respondent parents were both convicted of manslaughter of their child M.H.. M.H. was born on […], 2008. She died on February 25, 2011.

[2] Ms. Michelle Bennett, the child protection worker in this case swore an affidavit found at tab 2, volume 1, Motion Brief.

[3] Her evidence is that the parties had a child protection trial regarding the respondent's two remaining children, A.H.1, born […], 2005 and A.H.2 born […], 2013. The endorsement record shows that the trial ended on September 4, 2014.

[4] The court adjourned to December 16, 2014 for final submissions. Ms. Bennett states that the respondent's criminal trial took place after the child protection trial. Both of the respondents were convicted on October 8, 2014 of the manslaughter of their child, M.H.. They have not been sentenced.

[5] The information that the respondents were convicted was, thus, not known to the Society prior to closing its case. Ms. Bennett states that this information is relevant to the court's determination on the child protection trial because it supports the Society's argument that the respondent's two other children are at risk of harm.

The Respondents' Position

[6] Ms. Osadet, the respondent's counsel, opposes the Society's motion. She argues that the child protection trial was scheduled after the manslaughter trial was scheduled. The manslaughter trial was scheduled to proceed from September 8, 2014 to October 18, 2014.

[7] On August 20, 2014 the respondents filed a 14B motion (continuing record, volume 6, tabs 5, 6) to request an adjournment of the child protection trial until after October 24, 2014. The Society opposed the request. The court denied the motion due to a concern that the trial not be delayed. One child had been in care for 40 months and the other for 10 months. In addition, the court found that the respondents did not provide a reason that would justify the adjournment (see endorsement of August 27, 2014).

[8] Ms. Osadet argues that the Society could have kept its case open until the criminal trial verdict was pronounced, but it chose not to do so. The Society knew that the respondents could be found guilty. Ms. Osadet submits that the Society agreed with her that "the court's decision on disposition should not be influenced by any sentence potentially handed down by The Honourable Mr. Justice Sproat [the judge on the manslaughter trial]."

[9] Ms. Osadet submits that counsel for the Society "clearly indicated her agreement that the disposition of the criminal trial proceedings should not have a bearing on the ultimate disposition of the child protection case."

[10] She states that the court asked both counsel what their position was with regard to a scenario in which the respondents were sentenced to incarceration. Ms. Osadet says that both counsel said that it was a non-issue.

[11] However, she argues that it would be prejudicial to the respondents to allow the Society to reopen its case and adduce evidence of the respondents' conviction for manslaughter. As well she asks that the court consider the timing of the Society's request.

[12] Ms. Osadet further maintains that the evidence of the respondent's conviction does not alter the facts of the child protection trial.

[13] Ms. Osadet points out that the Society "indicates in its final submission that the conviction is a determination that should lead this Court to determine an appropriate disposition is an Order for Crown wardship for both children". She submits that the Society "seeks to adduce new evidence, under the guise of past parenting, despite the fact that evidence of past parenting has already been adduced".

The Law

[14] The respondents cite Varco Canada Ltd. v. Pason Systems Corp., 2011 FC 467 for the following propositions regarding reopening a trial after arguments and before judgment is entered or reasons given.

1. Reopening is a matter of broad discretion but one which should be exercised sparingly and cautiously (para. 15)

2. 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, sets out the questions that the court should consider:

   (i) would the evidence, if presented at trial, have changed the result?

   (ii) could the evidence have been obtained before trial by the exercise of reasonable diligence (para. 16)

   (Note: Sagaz dealt with a motion to reopen after judgment was rendered, which presumably make it a more stringent test.)

[15] In Varco, at paragraph 19, the court cited Risorto v. State Farm Mutual Automobile Insurance Co. CPC (6th) 390 (Ont. Div. Ct.), where the court held that the party that moves to reopen a case to call new evidence "must satisfy the court that the proposed evidence would probably change the result, and that it could not have been discovered by the exercise of due diligence" (para 34).

[16] The Varco court, in paragraph 21, referred to Sanofi-Aventis Canada Inc. v. Apotex Inc., 2009 FC 294 at paragraph 8, a case that dealt with a motion to reopen after the evidence was closed, but before submissions were made. This is the situation in the case at bar. Sanofi-Aventis addressed five factors: relevance, necessity, reliability, due diligence and prejudice.

[17] After considering these authorities, the Varco court held that "…the importance of the integrity of the trial process – the search for the truth through evidence – is an overriding consideration" (para. 22).

[18] The court stated that if there is no result to change [no judgment given yet] "the relevant question is whether the new evidence could influence the result – is the evidence relevant"? (para. 23)

[19] Ms. Osadet also referred to R. v. M. (F.S.), 111 C.C.C. (3d) 90. She submits that this case stands for the proposition that "it is acknowledged that when the applicant seeks to re-open its case, it acknowledges that the evidence is relevant to its case and further acknowledges that the evidence sought to be adduced should have been adduced as part of its case".

[20] M. (F.S.) was an appeal of a trial judge's ruling to allow the Crown to reopen its case and call further evidence after the defence had completed its evidence.

[21] I'm not sure that I agree with her interpretation of this case. The only reference that I could find in the case regarding this issue was in paragraph 30, where the court distinguished between reply evidence and reopening the case. I will reproduce the whole paragraph in order to provide the full context of the court's statement.

It is helpful to begin the legal analysis by identifying the exact nature of the Crown's application at trial. Trial counsel referred to it as an application to re-open the Crown's case. On appeal, it was referred to as an application to call reply evidence. In my view, the characterization at trial is the appropriate one. An application to re-open and an application to call reply evidence are close cousins and raise many of the same policy considerations: R. v. Krause, 29 C.C.C. (3d) 385 at 390-91 (S.C.C.); R. v. P. (M.B.), 89 C.C.C. (3d) 289 at 303-306 (S.C.C.). They are not, however, identical twins. When the Crown applies to re-open it accepts that the evidence is relevant to a factual issue which was material during the case for the Crown. The Crown acknowledges that in a perfect adversarial setting the evidence would have been led during its case and offers an explanation for failing to do so which it contends justifies departing from the normal trial format. An application to call reply evidence is premised on the contention that the proffered evidence takes its significance from something tendered during the defence case. On an application to re-open, the Crown must justify deviating from the normal rules of the adversarial process. When the Crown seeks to tender reply evidence, it relies on those same rules to justify the admission of the evidence.

[22] I do not read the court's statements in this paragraph, or in any other part of the case, as acknowledging that "when the applicant seeks to re-open its case, it acknowledges that the evidence is relevant to its case and further acknowledges that the evidence sought to be adduced should have been adduced as part of its case" as Ms. Osadet maintains. In a "perfect adversarial setting" it would have been, but I do not interpret M. (F.S.) as saying that by asking to reopen a trial the applicant acknowledges that it should have called the evidence as part of its case.

[23] Ms. Osadet concedes that the fact that the respondents were convicted of the manslaughter of their child is relevant and reliable. However, she argues that the evidence is not necessary because "the underlying facts of the convictions are already presented at the child protection trial and nothing turns on the disposition of the criminal trial".

[24] The underlying facts of the convictions may be already in evidence in the child protection trial, but the evidence of the respondents' conviction adds the very important fact that now it has been proven beyond a reasonable doubt that they killed M.H. while she was in their care.

[25] Ms. Osadet argues further that the Society is not being diligent in its pursuit of the evidence that it seeks to now adduce. She refers to the respondent's 14B motion discussed above. On August 20, 2014, the respondents filed this motion to request an adjournment of the child protection trial until after October 24, 2014. The Society opposed the motion.

[26] Ms. Osadet maintains that the adjournment that she sought on behalf of the respondents "would have permitted them to obtain the very evidence they now seek to adduce". She submits that to allow the Society to reopen their case "…amounts to going behind the Order denying the adjournment request…" She argues that the evidence of the respondent's manslaughter convictions "is no more probative than what was before the Court at the time the Society closed its case. The only purpose must be to prejudice the respondent parents, and to secure an order that is not necessarily in the best interests of the surviving children".

[27] The Society opposed the respondent's motion to delay this trial for good reasons with which the court agreed. As explained above, the court denied the motion due to a concern that the trial not be delayed. One child had been in care for 40 months and the other for 10 months. In addition, the court found that the respondents did not provide a reason that would justify the adjournment (see endorsement of August 27, 2014).

[28] Furthermore, I do not think that by asking that the court reopen the case that the Society is trying to go behind my order denying the respondent's motion for an adjournment. Circumstances have changed. The fact that the respondents were convicted of the manslaughter of one of their children is new important evidence. It prejudices their case but only in the sense that all admissible evidence that tends to damage a party's case is prejudicial to that party. It is prejudicial, but not unfair or inappropriate.

[29] In addition, I do not agree that the Society wants to introduce the evidence of the respondents' convictions "to secure an order that is not necessarily in the best interests of the surviving children". There is nothing to support this argument.

[30] Ms. Osadet submits that "The Society should offer an explanation for the failure to adduce the evidence when asking the Court to depart from the fundamental rule that once its case is closed, it should only be open (sic) to avoid a miscarriage of justice". In support of her argument she cites S. (S.R.) v. S. (H.P.), 122 O.A.C. 351, at paragraph 24.

[31] This case was a civil action for damages arising from a sexual assault. After the evidence was completed, but prior to final submissions, the trial judge allowed one of the parties to introduce into evidence the motion record because she thought that "it would be an error on her part to conclude the trial without this evidence" (para. 23).

[32] There is no doubt that a court should be able to reopen the case to prevent a miscarriage of justice. However, I do not read paragraph 24 as saying that that is the only time that it would be appropriate to reopen a trial. The court stated the following in paragraph 24:

A wide discretion is given to trial judges to re-open the trial to allow a party to adduce further evidence in order to prevent a possible miscarriage of justice. In this case, the issue of the date of separation was important. The motion record relating to the separation contained an affidavit sworn by the appellant and counsel for the appellant was given the opportunity to call evidence on it. In these circumstances, the trial judge was correct in her decision to re-open the proceedings and permit this evidence to be adduced.

[33] Ms. Osadet also argued that the Society's motion to reopen their case "raises issues of potential breaches of the section 7 rights of the respondent parents; in all the circumstances of this case, as detailed above for the Society to now seek to re-open its case, may be an affront to the principles of natural justice and security rights of the respondent parents", which include psychological security.

[34] She states further that "The respondent parents sought the adjournment and were denied same; the Society now seeks to reserve (sic – she must mean reverse) the decision and essentially interfere with the psychological integrity of the respondent parents".

[35] I disagree with this submission. I find that in the context of this case, the Society's actions in trying to reopen the case are an effort to present the court with relevant evidence that did not exist when the parties closed their cases.

[36] Of course the court is mindful of the respondent's rights and of protecting them, but I do not think that reopening the case to adduce evidence of their manslaughter conviction is an "affront to the principles of natural justice and security rights of the respondent parents" as Ms. Osadet claims.

[37] The focus of the child protection trial is the best interests of the children. Evidence of past parenting is crucial in making the decision that best protects their interests. This is recognized in s. 50 Child and Family Services Act which states that:

[38] the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceedings; and

[39] any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

The Society's Position

[40] In support of the Society's position, Ms. Shaw, counsel for the Society, cited DeGroote v. Canadian Imperial Bank of Commerce, 121 O.A.C. 327. This case was not a trial. It involved four motions in an action for damages for breach of contract, improvident realization, trespass, conversion, fraud and conspiracy to commit fraud.

[41] The request to reopen was made after judgment had been rendered but before it was entered. Again, one would expect that the threshold for allowing a reopening in this situation would be higher than if the request were made at an earlier stage of the proceedings.

[42] The decision of the court on the reopening is found at [1998] O.J. No. 1696. Justice Lax started her analysis by saying that:

It is well established that a court may re-open proceedings after judgment has been rendered but before a formal order has been entered. The issue with which the 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 that justice is achieved (para. 6).

[43] Justice Lax discussed the factors that the court should consider when deciding to reopen a case. With regard to the factors in a case where the court has not rendered its judgment she cited two factors mentioned in Qit Fer et Titane Inc. v. Upper Lakes Shipping Ltd., 3 O.R. (3d) 165:

1. Until judgment has been entered, a trial judge has a discretion to re-open the proceeding and hear fresh evidence.

2. In exercising such discretion the judge should be guided by the twofold test that the evidence would probably have changed the result and it could not have been discovered by reasonable diligence. This is the Becker Milk test (para. 9).

[44] In paragraph 3 the court stated that when exercising its discretion to re-open a case, the court "must consider whether the evidence would probably have changed the result and whether that evidence could have been discovered by the exercise of reasonable diligence. The reasonable diligence requirement will, however, be relaxed in exceptional circumstances where necessary to avoid a miscarriage of justice".

[45] Justice Lax decided not to reopen the case. The party seeking the reopening appealed. The Court of Appeal denied the appeal and stated that:

The decision whether or not to reopen the motion was discretionary. While the test has been expressed in a number of different ways, it essentially comes to this. The court must consider whether the evidence would probably have changed the result and whether that evidence could have been discovered by the exercise of reasonable diligence. The reasonable diligence requirement will, however, be relaxed in exceptional circumstances where necessary to avoid a miscarriage of justice (para. 3).

[46] Becker Milk Co. Ltd. v. Consumers' Gas Co., 2 O.R. (2d) 554, was a civil case which involved an award of "$4,750 for loss of profits, loss of leasehold interest and goodwill suffered by the appellant by reason of an explosion and fire on October 25, 1969, for which the respondent, the Consumers' Gas Company, has assumed liability". It was not a case in which one of the parties moved to reopen the trial, but just the opposite.

[47] In discussing the appellant's decision not to move for a reopening, the court commented on a trial judge's discretion to reopen a case. They stated that:

There is no question that until judgment was issued, the learned trial Judge in his discretion could have admitted further evidence if he were satisfied that the matters in question had come to the knowledge of a party after the trial, could not with reasonable diligence have been discovered sooner, and, if the evidence, as is the case here, were of such a character that it might probably have altered the judgment about to be given: Commercial Life Assurance Co. v. Williamson et al. (No. 2).

[48] All of the above cases have been either criminal cases or civil actions for damages. They are instructive, but I find that the most helpful cases are the ones in which the court was dealing with a child protection trial.

[49] Ms. Shaw referred the court to Justice Lalande's decision in Children's Aid Society of Sudbury & Manitoulin (Districts) v. H. (J.). This was a case in which the Society brought a motion to re-open after all of the evidence had been heard but prior to final submissions being made. This is the situation in the case at bar.

[50] Justice Lalande followed Children's Aid Society of Sudbury & Manitoulin (Districts) v. G. (L.), 2000, where the court stated in paragraph 37 that:

There is no question that, until judgment was issued, the learned trial judge in his discretion could have admitted further evidence if he were satisfied that the matter in question had come to the knowledge of a party after the trial, could not with reasonable diligence have been discovered sooner, and, if the evidence, as is the case here, were of such a character that it might probably have altered the judgment about to be given: (case citations omitted)

[51] Justice Lalande was satisfied that the evidence that the Society sought to introduce only came to their attention after all of the evidence in the trial had been called. Therefore, he stated that the only issue that he had to decide was "whether the proposed evidence is of such character that it might (probably) alter the judgment about to be given". He stated that:

…in child protection cases, the court ought not adopt a restrictive approach and should hear further evidence so long as it is relevant to the consideration of what is in the best interests of the child… Flexibility should be maintained by the court when exercising its discretion.

[52] Justice Lalande held that "it is important in dealing with child protection cases to adopt a flexible approach (where reasonably possible) so long as on balance the fairness and integrity of the trial is not compromised and to do so is not contrary to the best interests of the child" (para. 17). He found that "a less restrictive approach is best in light of the fact that there has been no decision rendered" (para. 21).

[53] In Catholic Children's Aid Society of Hamilton-Wentworth v. Claire L., Justice Czutrin dealt with a child protection trial in which the evidence had been completed, counsel had made final submissions and he had reserved his judgment.

[54] Before he gave judgment, the mother's counsel asked him to reopen the case so that the mother could introduce evidence regarding her starting residential treatment for substance abuse.

[55] Justice Czutrin explained the parties' positions thusly:

Counsel for the society objected to the reopening and "suggested that this was not new evidence, but merely confirmed that the mother had carried through with what she had already testified to — that is, her plan to enter Mary Ellis House. Counsel for the mother submitted that the evidence confirmed that the mother's treatment was not available prior to the conclusion of the evidence and was evidence that was important for my consideration.

[56] Justice Czutrin ruled that he "was prepared to hear that evidence and both counsel advised that they were prepared to have the evidence presented. Given the significance of the relief sought by the society and the fact that the judgment had not been given, I wanted to give the mother every opportunity to present evidence that was related to one of the key elements of her inability to parent her daughter".

[57] In Children's Aid Society for the Region of Halton v. S.O., Justice Wolder allowed the Society to reopen its case after the end of the trial and submissions had been made, but before judgment was rendered. His reason was that:

This alleged change [in the respondent mothers living arrangements] contradicted the very core of the plan being presented by [the respondent mother] and supported by Ms. Sh.O. and Mr. E.M. Since such a plan and its reservations is being considered by me, I allowed the applicant's motion to present further evidence and I allowed the respondents to produce further reply evidence (para. 25).

Analysis of Applicable Factors

[58] I have considered the above mentioned authorities carefully. The following factors that apply to the case at bar can be gleaned from them:

1. The court's discretion to reopen a case should be exercised sparingly and cautiously;

2. The court should consider if the evidence, if presented at trial, could have changed the result;

3. Could the evidence have been obtained before trial by the exercise of reasonable diligence;

4. Is the evidence relevant, necessary, and reliable;

5. What is the prejudicial effect of the new evidence;

6. The importance of the integrity of the trial process;

7. The search for the truth through evidence is an overriding consideration;

8. Would it cause a miscarriage of justice if the new evidence were not accepted? I would add to this factor a consideration of whether there would be a miscarriage of justice if it were accepted.

9. In child protection cases, the court ought not adopt a restrictive approach and should hear further evidence so long as it is relevant to the consideration of what is in the best interests of the child. Flexibility should be maintained by the court when exercising its discretion.

[59] Ms. Osadet concedes that the fact that the respondents were convicted of the manslaughter of their child is relevant and reliable.

Disposition

[60] After considering all of the evidence, the law and counsel's submissions, I allow the Society's motion to reopen the case solely to introduce evidence of the respondents' convictions for the manslaughter of their child, M.H..

[61] In addition to the reasons that I expressed above while commenting on counsel's submissions, I add the following reasons for my decision.

[62] I find that the evidence is relevant to whether I should make an order of Crown wardship or return the respondents' two remaining children to them. These are the only two choices that are open to me in this case.

[63] The evidence could not have been adduced during the trial by the Society by being more diligent because it did not exist. The respondents were convicted after all of the evidence in the child protection trial ended. I do not agree that the Society's opposition to the respondent's request to delay the trial by adjourning it until after their criminal trial ended was a lack of diligence. As explained above, the children in this case have been in care for an extended period of time and it was not in their best interest to delay the trial until after the verdict in their parents' criminal trial was delivered, especially since there was no fixed date for the verdict.

[64] This evidence will affect the outcome of the trial in a significant manner.

[65] The evidence will prejudice the respondent's case, but as explained above, not in an unfair way.

[66] The integrity of the trial process will not be affected by the admission of the new evidence.

[67] The search for the truth through evidence is an overriding consideration, which is satisfied by the introduction of this evidence. In the case at bar it is the truth of the respondents' capacity to safely parent their children.

[68] With regard to whether it would cause a miscarriage of justice if the new evidence were not accepted, I find that it would be absurd for this court to decide the issue of whether Crown wardship or returning the children to the respondents is in the childrens' best interest without considering the fact that the respondents were recently found guilty of the manslaughter of one of their children.

[69] I have considered that the jurisprudence holds that in child protection cases, the court should not adopt a restrictive approach and should hear further evidence so long as it is relevant to the consideration of what is in the best interests of the child. Flexibility should be maintained by the court when exercising its discretion.

[70] The parties shall consult with the trial coordinators to schedule a date for the reopening of the trial solely to introduce evidence of the respondents' manslaughter convictions. I leave it to the parties to estimate how much time they will need and advise the trial coordinator accordingly.

[71] The parties have made their final submissions so after the court hears the additional evidence it will adjourn to write its judgment. The parties will be notified when it is ready for release. The original time period of the middle to the end of April for release of the judgment is no longer feasible due to this motion to reopen.

[72] The Society shall contact my assistant, Ms. Laurie Findlay (905-456-4700, extension 5153), to advise her of the date chosen as soon as possible after it is set.

Released: April 7, 2015

Justice J.W. Bovard