ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-204-00AP
DATE: 20131108

BETWEEN:

TAMARA LEE STECKLEY

In Person

Applicant

• and -

BRIAN DOUGLAS STECKLEY

Brigitte Gratl, for the Respondent

Respondent

D. Lovell, Office of the Children’sLawyer

HEARD: November 7, 2013

REASONS FOR DECISION ON THE MOTIONS

REGARDING THE PROPOSED FRESH EVIDENCE ON APPEAL

Conlan J.

Introduction

1The father, B.S., appeals the decision of Hardman J. of the Ontario Court of Justice made in Owen Sound on 28 June 2012.

2The mother, T.S., opposes the appeal. The Office of the Children’s Lawyer (“OCL”) opposes the appeal.

3The father and the OCL are represented by counsel. The mother is self-represented.

4There are two children whose interests are affected by this appeal: Kn (a girl) born on 16 December 1997 (15 years old) and Kb (a boy) born on 13 August 1999 (14 years old).

The Litigation History and the Decision under Appeal

5In August 2009, Justice MacKenzie of the Ontario Court of Justice in Owen Sound made a Final Order, on consent, granting custody of the two children to the mother, with access to the father.

6In August 2011, the father brought a Motion to Change. He alleged parental alienation by the mother to frustrate his access with the children.

7The mother filed no materials on that Motion to Change brought by the father.

8The mother then brought her own Motion for child support. A Temporary Order was made in that regard.

9The father then brought another Motion, this time for contempt, alleging that the mother was in breach of his access Order.

10The father’s original Motion to Change, the mother’s Motion for child support and the father’s contempt Motion were all set for trial.

11On 25 June 2012, when the matters were called for trial, the father asked for an adjournment. The father’s counsel was unavailable because of a jury trial in Kingston. The adjournment request was made by an agent lawyer appearing in court on behalf of the father and his counsel.

12The father’s adjournment request was denied by Hardman J.

13On 28 June 2012, the parties and counsel, including the father’s lawyer, appeared in court in Owen Sound before Justice Hardman. The father’s two Motions (the original Motion to Change and the contempt Motion) were dismissed without a trial.

The Grounds of Appeal

14In his Amended Notice of Appeal at tab 2 of the Appeal Record, the Appellant father raises numerous grounds in support of overturning the decision of the Justice. Those include:

(i) the matter was improperly set for trial on June 25, 2012 over the objection of counsel for the father because of unavailability;

(ii) it was improper for the matter to appear as number three on the trial list when it had previously been marked as number four;

(iii) the father’s adjournment request was improperly denied;

(iv) the Justice erred in law by attempting to settle the matters; by reading a disclosure document on behalf of the OCL; and/or by inviting and accepting evidence from the children’s lawyer;

(v) the Justice erred in law in failing to analyze the views and preferences of the children through a proper trial and in the context of their best interests; and/or in placing too much weight on the wishes of the children in treating those wishes as decisive;

(vi) the Justice erred in law in ignoring issues that could only come to light at trial regarding the depth of the investigation conducted by the OCL;

(vii) the Justice erred in law in stating that it was not relevant why the children did not want to live with their father;

(viii) the Justice erred in law in making comments on the record at court on 25 June 2012 which suggest that the Justice prejudged the matters;

(ix) the Justice erred in law in attempting to cause the father to withdraw his claims at court in the absence of his lawyer; and/or in acting like a judge at a settlement conference;

(x) the Justice erred in law in implying that a will say of the OCL investigator was the same as if it was a report of the OCL or an affidavit sworn by the investigator;

(xi) the Justice erred in law in dealing with the father’s matters at court on 28 June 2012 as if there was a summary judgment motion before the Court to dismiss the father’s claims;

(xii) the Justice erred in law in dismissing the father’s claims without any viva voce evidence or cross-examinations;

(xiii) the Justice erred in law and misinterpreted Rule 2 of the Family Law Rules by concluding that the matters were justly dealt with in the absence of a trial.

The Motions to be Decided Before the Appeal is Heard

15The OCL moves to adduce fresh evidence on the appeal. The proposed fresh evidence is an affidavit sworn by Lorraine Bilyea on 21 October 2013.

16The father, in his own Motion supported by his affidavit, opposes the admissibility of the fresh evidence. Alternatively, the father asks that certain paragraphs of the affidavit be struck and/or be subject to cross-examination.

17The mother filed no materials on the Motions.

18Ms. Bilyea is a clinical investigator with the OCL, previously appointed to assist the former children’s lawyer and the current one when Mr. Lovell assumed carriage of the matter.

19The affidavit of Ms. Bilyea is approximately three pages long – 22 paragraphs. It includes as an exhibit Ms. Bilyea’s curriculum vitae.

20Paragraphs 1 through 8 of the affidavit deal with the history of Ms. Bilyea’s involvement up until 28 June 2012.

21Paragraphs 9 and 10 of the affidavit outline the re-appointment of Ms. Bilyea in June 2013 to assist the current children’s lawyer with regard to the issues relevant to the father’s appeal of the decision of Justice Hardman.

22Paragraphs 11 through 13 of the affidavit summarize comments allegedly made to Ms. Bilyea by the mother of the children, T.S.

23Paragraphs 14 through 19 of the affidavit summarize comments allegedly made to Ms. Bilyea by the child Kb, including his wishes regarding access with his father.

24Paragraphs 20 and 21 of the affidavit summarize comments allegedly made and views allegedly expressed to Ms. Bilyea by the child Kn.

25The final paragraph of the affidavit states that Ms. Bilyea requested that the father provide updated information for the appeal, however, he declined subject to the outcome of the appeal.

The Law on the Admissibility of Fresh Evidence

26There is no real disagreement between the parties on the law.

27Subsection 134(4)(b) of the Courts of Justice Act (Ontario) permits an appellate Court to receive further evidence.

28Sub rule 38(29) of the Family Law Rules permits the OCL, as a party entitled to be heard on the within appeal, to bring a motion to admit further evidence.

29Where child welfare is at stake, a more flexible approach to fresh evidence is appropriate. Evidence provided by the OCL which bears directly on the best interests of the children and which is reasonably capable of belief may be admissible. Decaen v. Decaen, 2013 ONCA 218, [2013] O.J. No. 1549 (C.A.) at paragraph 13.

30Generally, in non-criminal cases, the test for admissibility of fresh evidence on appeal is that the moving party must demonstrate on a balance of probabilities these three things: (i) that the evidence is credible; (ii) that the evidence could not have been obtained by the exercise of reasonable diligence before trial; and (iii) that the evidence, if admitted, will likely be conclusive of an issue in the appeal. Chiang (Trustee of) v. Chiang, 2009 ONCA 3, [2009] O.J. No. 41 (C.A.) at paragraph 75.

31I agree with Mr. Steckley that, generally speaking, the test for the admissibility of fresh evidence is applied more strictly in civil cases than it is in criminal matters. Regina v. Vanezis, 2002 11051 (ON CA), [2002] O.J. No. 994 (C.A.) at paragraph 8.

Analysis and Conclusion Regarding the Admissibility of the Fresh Evidence

32In a nutshell, the position of the father is that the affidavit of Ms. Bilyea is not admissible on the appeal because (a) the introductory paragraphs and the curriculum vitae (Exhibit A) do not contain new information that could not have been put before the Justice below, and/or (b) much of the information is hearsay.

33The mother, although she filed no materials on either Motion, submitted in court that she supports the Motion brought by the OCL to introduce as evidence on the appeal the affidavit of Ms. Bilyea.

34During the course of submissions by the parties at court today, I raised the question of whether a voir dire was required to determine the admissibility of Ms. Bilyea’s affidavit due to the fact that, quite apart from whether it meets the test for admissibility of fresh evidence, it contains hearsay statements attributed to the children.

35If this was a trial, for example, a voir dire would be required before admitting much of Ms. Bilyea’s affidavit, unless on consent.

36In my view, paragraphs 1 through 5 and 8 through 10 of Ms. Bilyea’s affidavit are admissible. Those paragraphs deal with non-contentious matters of the history of Ms. Bilyea’s involvement in the file and provide background to the rest of the proffered fresh evidence on appeal. There is no reason to apply the strict test for admissibility on such benign, non-controversial items.

37Mr. Steckley has a right to cross-examine Ms. Bilyea on her curriculum vitae which is referred to in paragraph 1 of her affidavit.

38Paragraphs 6 and 7 of the affidavit of Ms. Bilyea are not admissible. They simply purport to recite or summarize comments made by the then children’s lawyer to Justice Hardman on the record at court. Those recitals are not necessarily accepted as being accurate or fair by Mr. Steckley. That information is best left for argument by counsel on the appeal itself.

39Paragraphs 11 through 13 of the affidavit of Ms. Bilyea, which include comments allegedly made to her by the mother, are admissible subject to a voir dire to determine the necessity and threshold reliability of that hearsay evidence. Clearly, that evidence is credible; it could not possibly have been obtained prior to the decision under appeal; and, if admitted, that evidence will likely be conclusive of an issue which goes directly to the best interests of the children in that the evidence deals in part with the father’s interest or lack thereof in exercising access with the children.

40Paragraphs 14 through 21 of the affidavit of Ms. Bilyea, which include comments allegedly made to her by the children, are admissible subject to a voir dire to determine the necessity and threshold reliability of that hearsay evidence. Clearly, that evidence is credible; it could not possibly have been obtained prior to the decision under appeal; and, if admitted, that evidence will likely be conclusive of an issue which goes directly to the best interests of the children in that the evidence deals largely with the current views and preferences of the children.

41Paragraph 22 of the affidavit of Ms. Bilyea is not admissible. It may very well be contentious. And even if it is true that Mr. Steckley declined to provide Ms. Bilyea with updated information for the appeal, I conclude that the said evidence is not likely conclusive to an issue on the appeal. There could have been many reasons for Mr. Steckley having declined that invitation.

42A voir dire will be scheduled as soon as possible to determine the admissibility of paragraphs 11 through 21 of Ms. Bilyea’s affidavit. That hearing and the argument of the appeal itself will be scheduled on a priority basis for the sake of the children.

43The Motion of the OCL is allowed in part in accordance with these Reasons.

44The Motion brought by Mr. Steckley is allowed in part in accordance with these reasons.

45Subject to hearing submissions by the parties, I am inclined to order no costs for today.

Postscript

46Mr. Lovell suggested in reply submissions at court this morning that we could proceed to argue the appeal proper and conduct the voir dire and make a final determination on the admissibility of the proposed fresh evidence later on, only if the Court finds that an error was made in the Court below.

47I decline to adopt that approach.

48Now that the OCL has brought a Motion to adduce fresh evidence, it seems to me that the more proper procedure would be to adjudicate that matter before arguing the appeal itself.

49I thank counsel for their helpful submissions today.

Conlan J.