Court File and Parties
Ontario Court of Justice
Date: 2016-01-19
Court File No.: Halton 74/12
Between:
Taralynn Emma HUGHES Applicant
— AND —
Garett Jonathan ROY Respondent
Before: Justice S. O'Connell
Motions heard: January 8, 2016 and January 15, 2016
Endorsement released: January 19, 2016
Counsel:
- A. Sam Zaslavsky and Victoria Colby — counsel for the Applicant, Taralynn Hughes
- Modupe Ehinlaiye — counsel for the Respondent, Garett Roy
O'CONNELL J.:
Background
[1] The trial of the custody and access issues in this matter concluded on July 15, 2015. My judgment was reserved, to be released on January 8, 2016.
[2] However there are now two urgent motions before me. The applicant mother has brought a motion for an order that the children, Krysta Lee Hughes, born October 18, 2008 and Mason James Hughes (also known as Maxwell James Roy), born August 23, 2010, shall reside with the mother pending the release of my trial judgment.
[3] I heard argument on the mother's motion on January 8, 2016. Both counsel consented to the admission of all of the affidavit evidence for my consideration prior to releasing my trial judgment in this matter. I reserved that decision.
[4] The respondent father then brought a further motion to re-open the trial in this matter to introduce fresh or new evidence.
Changed Circumstances
[5] Since the conclusion of the trial, it is not disputed that there have been changes in the father's circumstances. Ms. Michelle Maharaj (Mr. Roy's common law spouse at trial) and Mr. Roy have separated. Ms Maharaj has left the family home. Ms Maharaj was a significant part of Mr. Roy's plan of care. Mr. Roy can now no longer afford the rental accommodation that he and the children were living in at the time of trial. Mr. Roy fell into arrears, leading to possible eviction. Further, his landlord has sold the rental property and the new owners will be demolishing the property over the next four to six months. Mr. Roy must therefore find new accommodation in any event.
[6] Several affidavits were filed by the parties at the hearing of the urgent motion brought by Ms. Hughes on January 8, 2016. The court heard argument at that time and both parties consented to the admission of those affidavits for consideration and prior to releasing my final judgment in this matter.
[7] However, at this stage, the father now wishes to re-open the trial to be able to adduce new evidence. The father wishes to adduce evidence from Mr. Michael Johnson, a member of his extended family related through marriage. Apparently, the evidence of Mr. Johnson is important in two respects:
Mr. Johnson has apparently offered Mr. Roy support and accommodation following the change in his financial and living circumstances. Mr. Johnson will be able to give evidence with respect to the nature of the accommodation and support.
Mr. Roy also wants Mr. Johnson to testify with respect to his ability to care for the children as he has "witnessed him taking care of the children during events at their home when he has been invited". He also wishes to adduce evidence with respect to the general support that Mr. Johnson and his family can provide Mr. Roy in the Oakville area.
[8] Mr. Roy also filed an affidavit of Ms Maharaj, sworn January 13, 2016, responding to some allegations raised by Ms Hughes regarding the separation. Counsel for the mother has consented to the admission of this affidavit as evidence that I may rely upon prior to releasing my trial judgment.
Legal Principles for Reopening a Trial
[9] The governing authorities makes it clear that the court's discretion to re-open a trial should be exercised sparingly and cautiously. The court must consider the following factors when determining whether to re-open a case after the end of the trial, either before or after judgment has been rendered:
whether the evidence, if presented at trial, could affect the outcome of the trial or could have changed the result if judgment has already been rendered;
whether the evidence could have been obtained before the trial by the exercise of reasonable diligence;
whether the evidence is relevant, necessary, and reliable;
what, if any, is the prejudicial effect of the new evidence;
the importance of the integrity of the trial process;
whether it would cause a miscarriage of justice if the new evidence were not accepted;
in child protection cases, the court ought not to accept a very 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.
[10] The overarching principle is one of fairness. As Justice R. Lalande stated in Children's Aid Society of Sudbury and Manitoulin v. G. L., [2000] O.J. No. 2646 at paragraph 10, "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 considerations of what is in the best interests of the child." This is particularly so when no decision has been rendered.
[11] Although this is not a child protection case, this is a custody and access case. My duty is to consider what is in the best interests of these children and to ensure that all of the evidence with respect to the children's best interests is known to me. As the Ontario Court of Appeal has stated at paragraph 22 in Varco Canada Ltd. v. Pason Systems Corp., 2011 FC 467, "the importance of the integrity of the trial process-- the search for the truth through evidence-- is an overriding consideration".
Decision on Motion to Reopen
[12] Given the change in Mr. Roy's specific circumstances since the close of evidence in this trial and in particular, the question of what his new plan of care will be for the children, I will allow the trial to be re-opened to hear the evidence of Mr. Michael Johnson with respect to the accommodation and support that they are prepared to offer Mr. Roy now in light of the change in circumstances. This evidence could not have been adduced during the trial given that the changes occurred after the close of the trial evidence.
[13] Further, this evidence could affect the outcome of the trial. I am not functus officio. The integrity of the trial process will not be affected by the admission of the evidence. I need to understand whether or not Mr. Roy now has a stable or viable plan of care for the children.
[14] However, Mr. Johnson's evidence will be limited to the issue of Mr. Roy's change in circumstances since the trial concluded. I will not permit any evidence with respect to Mr. Johnston's observation of Mr. Roy's ability to care for the children in the past at family events at their home or any general support provided in the past. This evidence could easily have been adduced at trial by the exercise of reasonable diligence.
[15] Therefore, after careful consideration, I will allow the father's motion to re-open the case solely to introduce evidence of his plan of care for the children, now that he has separated from Ms Maharaj and he will need to find new accommodation.
Decision on Mother's Motion
[16] With respect to the mother's motion to change the children's primary residence pending the release of my judgment in this matter, I am going to reserve my ruling on that motion until I hear the fresh evidence of the father's plan.
Next Steps
[17] The court is available to hear this evidence and any reply evidence, if necessary, on Friday, January 29, 2016. If that date is not available to the parties, then the parties may contact the trial coordinator Ms. Val Fillipilli at 416-327-6948 to obtain a date as soon as possible.
Released: January 19, 2016
Signed: "Justice Sheilagh O'Connell"
Footnotes
[1] Varco Canada Ltd. v. Pason Systems Corp., 2011 FC 467; Becker Milk Co. Ltd. et al v. Consumer Gas Co., 2 O.R. (2d) 554; 671122 Ontario Limited v. Sagaz, 2001 SCC 59; Risorto v. State Farm Mutual Automobile Insurance Co., (2009), 70 CPC (6th) 390 (Ont. Div. Ct.)
[2] See also Catholic Children's Aid Society of Hamilton-Wentworth v. Claire L.; The Children's Aid Society of the Region of Peel v. M.H. and S.H., 2015 ONCJ 204; Children's Aid Society for the Region of Halton v. S.O.