WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

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

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

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

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: 2019-09-03

Court File No.: Sault Ste. Marie File No. 108/13

Between:

CHILDREN'S AID SOCIETY OF ALGOMA, Applicant

— AND —

S.B. (formerly C.)

G.C.

C.P.

CONSEIL DES ABENAKIS D'ODANAK FIRST NATION - BAND REPRESENTATIVE

Respondents

Counsel and Parties

Before: Justice John Kukurin

Heard on: August 29, 2019 and on written submissions

Reasons for Judgment released on: September 3, 2019

Counsel:

• Jennifer Mealey — counsel for the applicant society
• S.B. — Self-represented Respondent mother
• Eric D. McCooeye — counsel for the respondent father, G.C.
• Jasmine Gassi Harnden — counsel for the respondent mother, C.P.
• Conseil Des Abenakis d'Odanak First Nation Band Representative — not present although duly served
• Liisa Parise, Office of the Children's Lawyer — for the child K.P-C.

REASONS FOR JUDGMENT

KUKURIN J.:

[1] This is a decision on a motion brought by the applicant society to re-open the summary judgement motion brought by it, which was argued, and is on reserve.

BACKGROUND

[2] By way of background, the summary judgement motion is brought in a child protection proceeding that started on May 4, 2013. There are three applications, now "joined together" by orders made since 2013 as follows:

• Application No. 1 – (Child O) returnable May 15, 2013, ordered to be heard together with
• Application No. 2 – (Child K) returnable June 6, 2013, and combined proceeding ordered to be heard together with
• Application No. 3 – (Child J) returnable April 1, 2015

[3] All three applications are child protection applications. There is no finding made yet that any of the three children is in need of protection despite the fact that the proceeding is now over six years old. The grounds relied upon for a finding are still stated to be under the Child and Family Services Act (the CFSA) s.37(2)(c) for the child "K", and s.37(2)(d) for all three children. Section 37(2)(c) has now been superseded and replaced by section 74(2)(c), and section 37(2)(d) by section 74(2)(d) of the Child, Youth and Family Services Act (the CYFSA). Except for a minor change of wording from "molested" to "abused", the old subsections are identical to the new subsections. Clause (c) refers to actual sexual harm, and clause (d) refers to risk of sexual harm.

[4] The society brought a motion for summary judgment (at Tab 9, Volume 6) returnable on September 6, 2017. It subsequently withdrew this motion and brought another, also for summary judgment (at Tab 14, Volume 10) which it also withdrew. It then brought a third (at Tab 22, Volume 10) which is the summary judgment motion with which I am currently dealing. That motion was argued before me on June 12, 13, and 14, 2019 and is currently on reserve.

[5] In July 2019, the society gave this court some informal notice that it was seeking to re-open the motion for summary judgment to file additional evidence that it had not had filed before the motion was argued. It was not able to secure the consent of all parties to do so, and accordingly, it brought the present motion for an order to re-open the summary judgment motion for further evidence. This motion to re-open is opposed by the father, who is the person from whom the society alleges the risk of sexual harm arises.

[6] Some other relevant background details include:

(a) The society's current summary judgment motion is for a finding only, and on one ground only – s.74(2)(d) – risk of sexual harm

(b) The new evidence the society wishes to file deals with one aspect only, namely, the psychosexual assessment of the father, filed August 24, 2014.

THE LAW WITH RESPECT TO RE-OPENING A CASE

[7] The re-opening of a trial, or in this case, a motion, is a matter within the discretion of the judicial officer who has heard the trial and is (said to be) seized with it. There is no specific statutory provision that grants this discretion, certainly not in the CYFSA. The Family Law Rules (the FLR) do not specifically refer to re-opening a case for further evidence. At best, Subrule 1(7.2) provides the court with the power to make orders or to give directions or impose conditions respecting procedural matters, including those in a provided list. Clause (g) of that list is:

Rule 1(7.2)(g) — that all or part of an affidavit or any other evidence filed at any stage in a case, and any cross-examinations on it, may be used at a hearing;

[8] Subrule 1(7.1) authorizes the court to make an order under subrule 1(7.2) "at any time", unless the Family Law Rules expressly provide otherwise. There is no express provision in the Rules that provides otherwise. Although it may be a bit of a stretch, the combination of Subrule 1(7.1) and Subrule 1(7.2) may be construed as an authorization empowering the court to effectively re-open a proceeding after the trial evidence is concluded, to admit additional evidence.

Rule 1(7.1) — For greater certainty, a court may make an order under subrule (7.2), (8), (8.1) or (8.2) at any time during a case, and the power to make such an order:

(a) is in addition to any other power to make an order that these rules may specify in the circumstances; and

(b) exists unless these rules expressly provide otherwise. O. Reg. 69/15, s. 1

[9] Rule 1(7) also provides that if a matter is not covered in the FLR Rules, that the matter may be decided by reference to the Rules of Civil Procedure (the RCP). Unfortunately, the RCP are not of much help either. Only two subrules of the RCP touch on re-opening a case for further evidence, and then only tenuously. As was pointed out by Murray J. in Catholic Children's Aid Society of Toronto v. M.R. [2014] O.J. No. 6531, at paragraph 11:

"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"."

[10] The re-opening of a trial for additional evidence is a recognized principle in the common law. But the governing authorities make it clear that the court's discretion to re-open a trial should be exercised sparingly and cautiously. The exercise of that discretion is not a broad one. In fact, it is circumscribed by a variety of factors that a number of jurists have commented upon over the years. The decision behind re-opening a trial or not re-opening a trial for further evidence is a balancing act, dependent on principles long developed in our law and on the factual variables of a particular case. Justice Price refers to the recognized right of a judge under the common law to re-open a case and alludes to this tension in Anderson v. McIntosh-Anderson [2018] O.J. No. 4123, 2018 ONSC 4688 at para 20:

"It is trite law, that a trial judge remains seized of the issues before her until a formal order or judgment is entered in the court record. There are several cases that stand for the proposition that a judge is not functus officio until the order is formalized. On the other hand, this does not mean that trials should be converted to rolling ongoing interminable hearings"

[11] The starting point for a normal trial process is well established.

"Generally speaking a party must marshal all of its evidence and present it during the trial. The party is not permitted to try to bring more evidence to bolster its case after that party's case is closed. It is for that reason that rules and principles have evolved concerning this issue of re-opening the case".

[12] The difference between reply evidence and re-opening a trial for additional evidence should be clarified. In Ontario Courtroom Evidence, the authors make plain that:

"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."

[13] Splitting one's case, especially in a criminal case context, but also in civil cases, is almost always a forbidden litigation tactic. The law places a burden of proof on the applicant in a civil case to call all of the evidence it relies upon to make its case. If that evidence is weakened by defence evidence, or in cross examination by the defence, the applicant is not allowed, in the adversarial litigation process, to then call confirmatory evidence to buttress its case. The defence is entitled to know what case it has to meet and make decisions, based on that knowledge, of what it calls in response. In common speak, the applicant does not get two kicks at the can. This concept is ingrained in our litigation process and is based on fairness.

[14] Timing and delay are important factors to consider in the exercise of discretion to re-open a case. If re-opening is permitted and additional evidence is filed, then fairness of the hearing demands that opposing evidence, if any, and the opportunity to make additional argument is provided to all parties. This inevitably causes delay in the final resolution of a case, especially one that has already been concluded. If the re-opening of a case is going to result in unduly delaying the final outcome, perhaps the price of the re-opening may be too steep. In child protection cases, time and delay have long been decried as factors that ought to be avoided, particularly when a child is in society care while the proceeding is ongoing.

[15] Apart from delay, timing of the request to re-open is equally important a factor. As a trial progresses, the increasing likelihood of prejudice to the defence becomes a factor that militates against re-opening the case. If the request is made just after the applicant has completed its evidence, there is minimal prejudice. But if made after the defence has already embarked on, and especially if it has completed, its defence evidence, the possibility of prejudice becomes more elevated. If the parties have already completed argument on evidence called in the trial, and it is on reserve, it is almost certain that re-opening will be prejudicial. In such instances, basic fairness demands that the parties, especially the defence, be given an opportunity to address the new evidence. Some cases have even entertained a request after a decision has been given but no formal order has yet been taken out. While the prevailing jurisprudence recognizes that a judge is not functus until a formal order is issued, it would be a rare occurrence when permission to re-open might be given at that stage. Generally, I would expect that evidence of post-trial happenings, especially those that impacted the evidentiary basis for the trial decision arrived at, would, at that point, have to be critical in permitting re-opening. In short, the request to re-open should be brought sooner than later, and as soon as the circumstances arose that might justify the re-opening.

[16] Several lists of criteria or factors that justify, or do not justify re-opening have been propounded by jurists. In the criminal law context, a leading authority is R. v. Palmer. It was a case where the accused were convicted to a great extent on the evidence of an admitted heroin trafficker, of disreputable character, with a criminal record, who, after the trial, had declared that his evidence at trial had been fabricated, was false, and he had been influenced by promises of money from the police. The British Columbia Court of Appeal refused the request to admit such new evidence.

[17] The Supreme Court of Canada affirmed this refusal on the basis that to admit it would not:

"serve the interests of justice to permit any witness by simply repudiating or changing his trial evidence to reopen trials at will to the general detriment of the administration of justice"

[18] The Supreme Court reviewed the law that had developed to that date, and distilled therefrom the following principles that the court should consider before allowing a case to be re-opened for additional evidence (at pages 12 – 13):

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [1964] 43 (SCC), [1964] S.C.R. 484.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[19] Other criteria, some overlapping with the foregoing, have been elaborated by jurists dealing with civil cases. In Hughes v. Roy, Murray J. provides the following list of factors a court should consider (at paragraph 9):

• 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.

[20] Similarly, in J.B. Family and Children's Services v. A.M. 2015 ONCJ 174, [2015] O.J. No. 1691, a summary judgment case, Justice Baker provided a list of considerations that a child protection judge might consider in deciding whether or not to re-open a trial for additional evidence. She referred to Castelrigg Investment Incorporated v. Lamm, a decision of the Ontario Superior Court of Justice, a case 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. She summarized the basic principles applicable to a motion to re-open (at paragraph 8):

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.

NATURE OF THE NEW EVIDENCE

[21] The present motion to re-open is brought following the completion of evidence (which in summary judgment motions is almost invariably by affidavits) and on completion of oral arguments which were quite comprehensive and lasted three days. The assessment report which is at the centre of the request to re-open is a psychosexual assessment of the father of all three children which was ordered on consent of the society and the father in the case involving the child "K". The order was dated June 25, 2014. The assessor named in the order was Dr. Robert Dickey. The order was made pursuant to s.54 CFSA which has since been replaced by s.98 CYFSA. It was also made subject to the provisions of Ont. Reg. 25/07 which is entitled "Court Ordered Assessments". There does not seem to be a regulation in existence yet with respect to assessments under s.98 of the CYFSA.

[22] The assessment report of Dr. Dickey reported that the father suffers from a deviant sexual preference involving children or immature persons (at page 5). He also reported the following:

"The result of [the father's] phallometric evaluation was indicative of his suffering from Pedohebephilia."

[23] Dr. Dickey did not personally perform the phallometric testing of the father. This was done by a "highly trained Behaviour Technician". Moreover, the profile produced by the phallometric test was not interpreted by Dr. Dickey. It was interpreted by professional staff, including the unidentified Behaviour Technician, and Dr. S. M. Woodside who authored the final phallometric report which was then forwarded to Dr. Dickey. The six page report of Dr. Dickey provided to the court in 2014 indicated that the father suffered from pedohebephilia. The report of Dr. Woodside, however, reported that the father's phallometric results were indicative of "hebephilia", (an erotic preference for prepubescent children). None of Dr. Woodside's report was included in what was provided to the court. Nor were any test results of the Behaviour Technician. Moreover, the assessment report provided to the court did not have appended to it Form 20.1 (Acknowledgement of Expert's Duty).

[24] The society now has additional evidence which it wishes to file on the summary judgment motion to clear up the discrepancy in the diagnosis, to essentially confirm that the expert opinion of the risk of sexual harm is identical, regardless of the actual diagnosis, to provide curriculum vitae for Dr. Woodside as well as for the Behaviour Technician (now identified by name) who performed the phallometric testing of the father, and to provide Form 20.1 Acknowledgement of Expert's Duty for all three individuals involved in the psychosexual assessment. This it wishes to do if it is allowed to re-open the motion.

ANALYSIS

[25] The two main bases for re-opening a case for new evidence is, as has been expressly stated, or as is implicit in the more than several criteria mentioned above, is fairness to the litigants and children, and integrity of the trial process. Each case has a number of variables that may be relevant to those considerations in one way or another. I consider these variables in this case that impact on these foundational principles.

[26] Contextual Considerations – The case before this court is essentially a combination of three child protection cases started in May 2013. It is over six years old. None of the children have been apprehended. They are with their respective mothers, and have been throughout. Regardless of the reasons for this shameful delay, the children are not in any significant "limbo", nor are they pre-occupied with the lack of permanence that this case represents for them. At most, the two youngest are deprived of a normal relationship with their father. However, it appears that the father is an access parent to them as he and his wife have separated and she has a new partner. More to the point, however, this motion to re-open is not with respect to a trial. It is brought in the framework of a motion for summary judgment. In any child protection case, there are three major distinct determinations that must be made: finding in need of protection, disposition (or care and custody placement), and access. In the motion for summary judgment which is on reserve with me, the only claim made is for a finding. The result is that this case is not finished if a finding is made by summary judgment. Short of consents to placement and access, it continues on. If the motion for summary judgment is unsuccessful, the case will absolutely go on to a formal trial. In short, regardless of whether this new evidence is allowed or disallowed, it will not resolve the proceeding. It will only deal with one step – maybe. The society may get its two kicks at the can.

[27] Temporal Considerations – The assessment was ordered on a motion returnable June 3, 2014 and it was ordered on June 25, 2014. The report of the assessment was dated August 24, 2014. It is now five years old. The new evidence that the society wants to introduce are affidavits of the assessor, Dr. Dickey, as well as of Dr. Woodside and of the Behaviour Technician (Michael Kuban), all sworn in July 2019. These are not updates ordered by the court. They are clearly intended to address discrepancies and/or deficiencies in the original 2014 report and to rehabilitate it as evidence. Why the over five year delay in doing this? The society's evidence recounts that in preparation for a summary judgment motion, in February 2018, it sought materials from Dr. Woodside which were, and who was, initially not forthcoming. Efforts continued in March and June 2018. It was not until July 2019, after the summary judgment arguments were concluded, that this additional "new evidence" was received by the society.

[28] This does not shed any light on why nothing was done from 2014 to 2018. Where was the due diligence of the society for those four years? Not one word was mentioned in the society's evidence on this motion to re-open. Its evidence was that it took steps in early 2018, and even then it took over 15 months to get what it was seeking. It must be remembered that the assessment was sought by the society and the report is the society's evidence. Having sought it and got it, it was responsible to ensure that it was in the form that complied with the law, and said what the society argued that it said. If it did not, it was the duty of the society, in exercising due diligence, to have sought and obtained the clarifications it finally got in 2019, but much, much earlier. It clearly had notice long before the summary judgment motion was argued and arguably, it should have known long before then.

[29] Another temporal factor I alluded to earlier has to do with delay. The sad reality is that this case is ridiculously past the timelines for completion. Yet there is still no finding that any of these children is in need of protection. Re-opening the summary judgment motion may result in further evidence by the father, further argument on any new evidence permitted and, in light of the new evidence, may even involve some viva voce evidence, with leave of the court, from one or more of the individuals involved in the assessment of the father. This all takes time to arrange and to do. It will prolong the delay in at least this finding part of the case. While I cannot discount delay as a factor militating against re-opening, this case is so far beyond any reasonable time expectations that delay does not seem to matter much any more. Thankfully, none of the children are in society care.

[30] Prejudice to the father in this case is also temporally related. If this evidence had been brought before the arguments were heard on the summary judgment motion, the father could have addressed this new evidence. He was deprived from doing so then, and can only do so on some future occasion.

[31] Consideration of the Impact of the New Evidence – This consideration combines the potential of the new evidence to impact on the evidence already heard (or read) and whether, if believed, it could affect the outcome of the summary judgment motion. In this case, it clearly does impact on the prior evidence of the psychosexual assessment of the father. Without this new evidence, the assessment report was and is subject to attack by the father on a number of fronts, some of which are sought by the society to be shored up by this new evidence. It could be quite prejudicial to the father. The new evidence is technically not a part of the assessment report ordered by the court. Or is it? Under s.54(6) CFSA and the identically worded s.98(12) CYFSA, it is not statutorily stated to be evidence in the proceeding in which it was ordered. This throws a potential evidentiary monkey wrench into this new evidence as well.

[32] More importantly, the nature of the evidence sought to be introduced goes to the heart of the only issue in the summary judgement motion. It is all about whether the father is a source of a risk of sexual harm to the children in the proceedings. To this extent, it is not only relevant but quite important to this issue. This is not the only evidence that is proffered by the society, but it is evidence that, if admitted and believed, may well affect the court's decision. The society still has the original assessment report to rely upon. Its importance may be somewhat attenuated, but still far from being totally discounted. On the other hand, it is, for the same reason, very prejudicial to the father. This is not an innocuous piece of evidence that has marginal relevance to the outcome of this summary judgment motion.

[33] Consideration of Finality And Completeness – The "paramount purpose of the Child, Youth and Family Services Act, … 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 the reported decisions dealing with re-opening a case, some have been child protection cases like the present one. Justice Lalande, in his J.H. decision, supra inclined to more flexibility in re-opening for further evidence because his child protection case concerned the best interests of a child. He said (at para 17):

"In the court's view, 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."

[34] In another child protection case, Justice Czutrin re-opened the hearing, completed but before judgment had been given, because he felt that he had to give the mother an opportunity to give her fulsome evidence on a key issue in his case. He said (at paragraph 8):

"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."

[35] There seems to be some relaxation of the common law injunction to exercise judicial discretion "sparingly and cautiously" when deciding whether to re-open a case, if that case is a child protection case. If this is a correct approach, my view is that relaxation or "flexibility" should be exercised more so at the stages of disposition and/or access, than at the stage of a finding whether a child is in need of protection. There is a parallel here with the criminal law. Until a finding of guilt is made, the evidentiary rules are adhered to much more strictly by the court. After that finding is made, the court tends to be more relaxed in what they accept as evidence on disposition (i.e. sentence). While this observation may deal with evidence, it applies, in my view, almost equally to the issue of re-opening a case for more evidence.

[36] The interest of finality weighs more heavily toward not re-opening. It is clearly a balancing of competing interests that drive the decision to re-open. Finality here is not achievable in all respects. It is only a partial finality, on only one aspect of the hearing that may, but not necessarily must, result.

[37] In terms of completeness, it must not be forgotten that if the motion for summary judgment is not successful, the society has the obligation to proceed to trial, at which time, it will have almost complete say, subject to evidentiary admissibility rules, in what evidence it will call, including the "new evidence" that it wishes to introduce in the summary judgment motion it wishes to re-open. Conversely, the father will have full opportunity to require at least Dr. Dickey, as the court ordered assessor, to attend and to be cross examined. Completeness is most often associated with a full trial, not necessarily with a summary judgment motion.

[38] Consideration of Miscarriage of Justice and Integrity of the Trial Process – These competing themes are mentioned so often that they have almost become trite. The integrity of the trial process is possible only when litigants and courts follow the rules. Re-opening a trial is usually beyond the rules. To prevent the miscarriage of justice, sometimes rules have to be bent, sometimes even broken. The question here is whether this is one of those times. Miscarriage of justice can work both ways. If the case is not re-opened, the society is precluded from calling evidence that is relevant, likely reliable considering its source, and likely to have an impact on the decision on the summary judgment motion. If the case is re-opened, the father will be further delayed in a (finding) resolution, will have additional litigation expenses and effort on the summary judgment motion, and will have evidence to contend with that he did not have before. In short, the case against him will be changed somewhat, with the potential for much more serious consequences. He is the party who is sticking to the rules. It is the society who is not, regardless of the reasons why not, and how good those reasons may be.

[39] My sympathies are on the side of the father on this consideration. The society has had plenty of time to adduce evidence of the father as a source of sexual harm. It has had plenty of time to obtain this "new evidence" before the summary judgment motion was argued. It has, in fact, provided considerable evidence aside from the assessment. It should follow the rules of litigation more tightly than it has in this instance.

CONCLUSIONS

[40] In conclusion, I have decided to exercise my discretion to dismiss the society's motion. I decline to re-open the summary judgment motion to permit filing of the society's further evidence. I direct and order that the society's evidence at Tabs 3, 4 and 5 of Volume 11 of the continuing record are not evidence on the summary judgment motion at Tab 22, Volume 10. I do not make any order that these materials be removed from the continuing record mainly for appeal purposes. I also make no order as to what further use may be made by the litigants with respect to these materials. That is for the decision of another judge who may or may not be the trial judge, if a trial takes place.

[41] The reasons for my dismissal are discussed above. In the weighing of the considerations for or against the decision to re-open, I find that the society moved too slowly, the evidence is not decisive, the society has another kick at the cat if the finding sought is not made, and the practical impact on the children at this point is negligible. Conversely, I find that the father has followed the rules, would potentially be considerably prejudiced not only in the consequences of such new evidence, but also in terms of time and expense. Finally, I have no assurance that the court has the ability to accommodate an early re-opening for argument.

Released: September 3, 2019

Signed: "Justice John Kukurin"