WARNING

The court hearing this matter directs that the following notice should 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 45(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

Windsor Registry No.: FO-12-0000196-0001

Date: 2015-05-27

Ontario Court of Justice

Parties

Between:

Windsor-Essex Children's Aid Society

Frank W. Philcox, counsel for the applicant society,

— And —

C.M.

Courtney M. Rubin, counsel for the respondent mother

and

D.M.

Not present and unrepresented

Heard: 14 May 2015

Decision

Justice B.M. Tobin:

[1] The respondent, C.M., brought a mid-trial motion asking the court to direct that two society witnesses be recalled so that she could re-cross-examine them.

[2] The respondent's request was denied with reasons to follow. These are those reasons.

[3] In the status review hearing, now before the court, the society seeks an order that the respondent's children, S.R.M. born …, 2009 and L.L.M. born …, 2010, be made wards of the Crown without access.

[4] As part of its case, the society called Dr. J.O. and Ms. N.B.[1]

[5] Dr. O. prepared an assessment report dated 4 April 2014 that examined the nature of the attachment of both children to the respondent mother and provided an opinion regarding the impact of continued contact with the respondent mother as well as the discontinuation of those contacts. In addition, Dr. O. assessed the psychological and behavioral functioning of both children and made recommendations regarding services required by each to address any identified special needs. The assessment report was made pursuant to section 54 of the Child and Family Services Act, R.S.O. 1990, c. C-11.

[6] On 31 July 2014, Dr. O. was questioned under oath by the respective counsel for the society, the respondent mother and the children.[2]

[7] Dr. O. was examined and cross-examined in this hearing on 31 March 2015.

[8] Ms. N.B. is the foster mother of the two children. She gave evidence of her care of the children, their needs, the challenges they present and her strategies for meeting those needs and challenges. In particular, she gave evidence of the children's behaviour both before and after access with the respondent mother. She testified on 1 April 2015. After she testified, I directed counsel to make submissions the next day whether the access then granted to the respondent mother should be suspended. I heard those submissions the next day and ordered that the respondent mother's access be suspended.

[9] The trial was adjourned to 20 April 2015 for one day and subsequently adjourned for completion commencing on 1 June 2015.

[10] The respondent mother brought her motion on 14 May 2015 to have these two witnesses recalled for re-cross-examination.

[11] The respondent mother's evidence on the motion is that there are additional questions that need to be put to these witnesses. Candidly, the respondent mother deposed that the request is not "sparked by receiving any new information." Simply put, upon reflection after cross-examining these witnesses, the respondent mother's counsel thought of more questions to ask. No specific line of questions or subject matter was referred to in the evidence presented on this motion.

[12] Counsel for the society opposed the motion. He argues there are no new issues that have arisen and, in these circumstances, the court should not condone a practice that could result in never-ending trials. The delay caused by the re-opening of the case would be prejudicial to the society and the children. It may result in the society's having to re-open its case.

Legal Considerations

[13] The request made by the respondent mother is an unusual one. Neither counsel provided a case directly on point. None of the cases that were cited by counsel addressed a request to have a witness recalled for the purpose of re-cross-examination. They addressed a request to re-open a party's case after it had been closed for the purpose of providing further evidence. These cases addressed an issue that was not before the court.

[14] In the text, Ontario Courtroom Procedure,[3] the learned authors caution at page 837:

. . . post-trial motions to re-open the trial to introduce new or additional evidence, which may sometimes include a request for leave to re-call a witness, must be distinguished from trial motions for leave to recall a witness. The exercise of a trial judge's discretion to require the recall of a witness must be cautiously exercised to avoid prejudice to the adverse party.

[15] In the text Evidence in Trials at Common Law,[4] the author suggests:

A recall for re-cross-examination will [occur] in rare cases where the direct examination of an intervening witness has brought out new facts upon which the prior witness may throw light and, for this purpose, the matter can always be left in the hands of the trial court. The general principle, therefore, of the trial court's discretion as controlling the grant of a recall for this purpose is conceded to apply here also. (footnote omitted)

[16] It is not an issue on this motion that the court has the discretion to allow the recall for re-cross-examination. The issues are whether the court should exercise its discretion to do so and on what basis.

[17] In the exercise of this discretion, the court must consider Family Law Rules 2(2) and 2(3), which provide as follows:

(2) Primary objective.— The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with cases justly.— Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[18] The rules should be construed to promote expeditious determination of a proceeding (including this child protection hearing) while recognizing the interests of all the parties and the importance of the issues not just to the parties but to the administration of justice. This includes adopting procedures within allowable limits to promote the fair and efficient disposition of a case: see Scurci v. Scurci, 2013 ONSC 7199.

[19] A further consideration in the disposition stage of a child protection case is that of the best interests of the child. In addressing procedural matters in a child protection case, I agree with the reasons of the court in Children's Aid Society of Sudbury and Manitoulin v. Jennifer H., where, at paragraph [17], it states:

[17] . . . 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.

Application of Legal Considerations

[20] The evidence of Dr. O. was known to respondent mother's counsel well in advance of the hearing. The report was released over one year ago. Counsel for the respondent mother examined Dr. O. under oath well in advance of the hearing. Counsel had every opportunity to explore, without restriction, all lines of questions.

[21] Counsel also had extensive time to reflect on her cross-examination prior to the commencement of the hearing.

[22] After completing her cross-examination at the hearing, no new evidence was presented that would make it unfair to the respondent mother to proceed without further cross-examination of Dr. O. This was acknowledged by her counsel.

[23] In argument, counsel suggested that the questions she might ask in re-cross-examination related to possible alternate explanations for the children's behaviour and whether she would change the diagnosis made of the children. Counsel did not suggest that she was in a position to call any evidence to counter or contradict what was already given in evidence or that Dr. O. had the opportunity to see the children subsequent to completing her assessment report.

[24] The delay that would be occasioned by allowing the re-cross-examination and the risk the society would need to re-open its case outweighs any identifiable benefit to the respondent mother in allowing the re-cross-examination to take place. This is not a situation where counsel for the respondent mother forgot to cross-examine on essential aspects of the case. The best interests of the children require this case to proceed without further delay.

[25] It is for these reasons, I decline to exercise my discretion to recall Dr. O. for re-cross-examination.

[26] Ms. N.B. gave evidence about her interactions with the children in her capacity as foster mother, which responsibility began as a relief foster home in March 2012 and as the full-time foster home beginning on 27 July 2012. As described above, she gave detailed evidence about the needs of the children and how they are being met by her.

[27] In evidence, Ms. N.B. made reference to notes she had made. When she requested permission to review the notes made for the purpose of refreshing her memory, respondent mother's counsel did not object.

[28] The respondent mother's counsel did not complain that she was not provided with disclosure in a timely fashion from the society, including disclosure as it pertained to Ms. N.B.

[29] As with Dr. O., counsel concedes there was no new evidence revealed by witnesses called subsequent to Ms. N.B. that requires her to attend for re-cross-examination. Counsel just wants to ask more questions.

[30] In submissions, counsel advised she wanted to explore the journal entries in more detail even though she had them for a period of time before the hearing commenced. There was no suggestion that there was late or inadequate disclosure of these journal entries.

[31] No compelling reason has been provided why Ms. N.B. should be re-cross-examined. Consequently, I decline to exercise my jurisdiction to require her to attend for that purpose.

[32] However, Ms. N.B. must be recalled so she can give evidence of her interactions with the children since 1 April 2015. She may be examined in-chief by society counsel and cross-examined by respondent mother's counsel for that purpose. Ms. N.B. is not being recalled to allow the respondent mother's counsel to re-cross-examine Ms. N.B. on matters that occurred prior to 1 April 2015.

Order

[33] It is for these reasons that an order was made:

(1) Dr. O. shall not be ordered to return to court so that the respondent can re-cross-examine her.

(2) Ms. N.B. shall re-attend at the next return date of the trial to give evidence in-chief about the circumstances of the children since she testified on 1 April 2015 and shall be subject to cross-examination and re-examination if requested with regard to events since on or after 1 April 2015.

Released: 27 May 2015

"original signed and released"

Justice Barry M. Tobin

Footnotes

[1] The society has closed its case. The respondent mother is scheduled to begin presentation of her case on 1 June 2015.

[2] Counsel for the children was granted leave to be removed as solicitor for the children prior to the commencement of this status review hearing.

[3] The Honourable Justice Michelle Fuerst and The Honourable Justice Mary Anne Sanderson, General Editors, Ontario Courtroom Procedure (3d Edition). Markham, Ontario: Lexis Nexis, 2012.

[4] Wigmore, John Henry, revised by Chadbourn, James H., Evidence in Trials at Common Law. Boston and Toronto: Little, Brown & Company, 1976.