Court File and Parties

Citation: N.H v. J.H., 2017 ONSC 4414 Court File No.: 12-3056-0 Date: 2017-07-20

Court of Ontario Superior Court of Justice, Family Court

Re: N.H., Applicant And: J.H., Respondent

Before: Mr. Justice Calum MacLeod

Counsel: Brian Ludmer, for the Applicant father Richard P. Bowles, for the Respondent mother

Heard: July 20th, 2017

Endorsement

[1] Under what circumstances may a motion be brought before another judge while a trial decision is pending? Should there be greater latitude in family law proceedings?

[2] The short answer is that such a motion should be rare and is justified only in extraordinary or extreme circumstances. While it is conceivable that such instances might arise in a family law proceeding if there is an emergency in which the child is at risk of immediate harm that is not the case here.

[3] The issues the parties seek to raise in their motions are all issues with which the trial judge is seized. If there have been relevant developments since the parties closed their cases, the proper approach is to seek to re-open the trial and to admit fresh evidence. To the extent that the parties are seeking to put the same evidence before a motions judge that is currently being assessed by the trial judge, that is highly improper. A motions judge should not be asked to make findings of fact or reach conclusions that might undermine the trial process that is still underway.

[4] For the reasons that follow, both motions are dismissed and the parties are directed to appear before the trial judge.

Background

[5] The parties are involved in bitter and protracted family litigation which amongst other things involves the care, custody and parenting arrangements for their two children, a daughter who will shortly be 13 and a son who is 10 ½.[^1] The litigants have been separated since December 27th, 2011 and have been involved in this proceeding since 2012.

[6] There have been many interim orders and a custody access assessment. There has also been frequent involvement with the Children’s Aid Society. The trial began on February 13th, 2017 before the Honourable Madam Justice Jennifer Mackinnon who is of course a highly experienced and skilled Family Branch judge.

[7] Although the trial was originally estimated at three weeks, it ultimately took seven. It was marked by several interruptions which required rulings and directions from the trial judge. These included orders for additional production and an order for an update to Dr. Leonoff’s report to take into account certain events that took place with the eldest child during the trial. There was also a need to refer information to the CAS which continued to have an open file. In short the trial judge was faced with a fluid and changing situation which required her response. There had been a previous temporary order placing the oldest child in the mother’s care. Justice Mackinnon stayed that order during the trial.

[8] On March 17, 2017 the applicant had concluded his case but he subsequently brought a motion to re-open the trial in order to put before the court evidence concerning a mental health emergency that had apparently arisen with the child. By order of April 21, 2017 Justice Mackinnon granted leave to re-open the applicant’s case in order to adduce this evidence and she also made another mid-trial temporary order setting out certain provisions under which the mother would have supervised access. She did not believe it was appropriate to lift the stay she had previously imposed.

[9] The trial resumed in the weeks of May 23rd and May 30th and the evidence was ultimately concluded. On June 6th, 2017 Justice Mackinnon dealt with a standalone motion to lift the stay on the temporary principal residence order. She declined to do so but she did make further specific provisions for access modifying her order of April 21, 2017.

[10] The trial decision is currently under reserve.

[11] Apparently on June 24th, 2017 the child went to the mother’s house and refused to return to the care of the father. Of course the circumstances and whether the mother is in breach of the order of Justice Mackinnon are very much in dispute.

[12] On June 30th, 2017 the applicant launched the motion that is now before me. In his notice of motion he seeks an order by a judge other than the trial judge to compel the mother to comply with the orders made by Justice Mackinnon, an order for return of the child to the care of the father, an order for make up time, an order for police enforcement and for further disclosure.

[13] While taking the position that this matter is not properly before me, the respondent has launched a cross motion. That motion seeks to stay the orders of Justice Mackinnon of April 21st and June 6th, 2017, varying a previous temporary order made by Justice Laliberté in September of 2013 and a request that the court hear oral testimony.

[14] Just to complete the narrative, I will note that on June 27th, 2017 Mr. Bowles apparently asked for permission to contact the trial judge and Justice Mackinnon advised that she was not going to receive communications from counsel that were not on consent of both parties. She directed that if the parties wished to bring a matter before the court, they should do so by motion and the court would decide whether the motion should be heard by the trial judge or by another judge. She did not, as Mr. Ludmer suggests in his notice of motion direct “that this Motion be heard on an urgent basis by judge other than the parties trial judge in order to protect the integrity of the trial process”.

[15] The next thing that occurred was a case conference with The Honourable Madam Justice Doyle. That took place on July 7th, 2017 and was for the purpose of securing an urgent motion date. Justice Doyle was apparently told that Justice Mackinnon was hoping to release the reserved trial decision by the end of July. And she recorded that “the parties also agree that the Justice hearing the motion should be anyone other than the trial judge”. Mr. Bowles concedes that he took that position before Justice Doyle but he now argues that upon reflection and upon reviewing the law, he was in error. As I indicated in my introduction, I agree with this latter assessment. Both counsel were in error on this point.

[16] With respect to urgency, Justice Doyle was told that the daughter had originally been placed with the father because of a serious allegation concerning the mother and with the support of the CAS and that the mother was now alleging that the daughter wished to remain with her because her father allegedly hurt her. This resulted in Justice Doyle making an order for further CAS disclosure and then directing the trial co-ordinator to schedule an urgent motion because the well-being of the child appeared to be at stake. The motion came before me this afternoon.

[17] Since leave was granted to proceed with this motion, the trial co-ordinator has been deluged with affidavits, briefs and factums all directed to the motions judge. I will not comment further on that other than to note that material that is not properly filed and not incorporated into a continuing record runs a significant risk of being misplaced or remaining unread. Material that duplicates affidavit evidence already in the CR or the trial record or filed as an exhibit at the trial represents a significant waste of resources.

Analysis

[18] I do not doubt that in a true emergency there is a residual discretion in judges of this court to entertain a motion even if a trial decision is under reserve. Short of such a true emergency (of the sort that would justify immediate injunctive relief) in circumstances where the trial judge is not available, I cannot readily envision a situation in which such a motion ought to be dealt with by another judge. In a family court case involving custody and access, the parenting issues are the very issues before the trial judge and to seek additional interim orders dealing with those matters from another judge is in effect to usurp her role.[^2]

[19] Perhaps there is some confusion as to when a trial begins and finishes. That should be dispelled.

[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. Once the court has released a decision, it would be a rare case where it might be in the interests of justice to withdraw reasons of the court and to rehear the case on the merits.[^3] I make this point simply to emphasise that in certain circumstances a trial judge could re-open the hearing even if she had released her reasons. The trial is not technically concluded until the judgment is entered. In my view the trial is still in progress.

[21] Trials are of course subject to formal procedures. Just because the decision is under reserve and the trial is still in progress, does not confer upon the parties or the trial judge a licence to continually entertain additional evidence. 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. Justice Mackinnon referred to them when she gave leave to the applicant to re-open his case in April. She referred with approval to the factors outlined in Hughes v. Roy.[^4] Amongst those factors are whether the evidence is relevant, necessary and reliable, whether it could have been obtained before the trial by the exercise of reasonable diligence and whether it would cause a miscarriage of justice if the new evidence were not accepted.

[22] This trial has been somewhat unusual in that there has been an ongoing and highly relevant involvement by CAS and there may be significant mental health concerns in relation to the child. As Justice Mackinnon stated in her April 21st decision, the court could not complete the trial without hearing testimony about the course of and conclusion reached by the CAS investigation. At the same time she was highly attuned to the need of the children and the parties for the trial to conclude and the court to render its decision.

[23] It is certainly possible that the change in circumstances which has taken place since the parties closed their cases would meet the test for re-opening the trial. There can be no question that the trial judge has that authority at a time when she has not yet released her decision. Whether to entertain that evidence or to re-open the trial is a decision for her and her alone and it would not be appropriate for a motions judge to entertain that evidence on a motion while the decision remains under reserve.

[24] Similarly the temporary orders made by the trial judge “without a determination on the merits” which were designed to create stability during the trial and pending her final decision should not be revisited by another judge at this time. When the decision is released and judgment is rendered those temporary orders will cease to have effect and they will be replaced with a final order. In the meantime, if events have occurred to render those orders impractical or inappropriate or on the other hand if one of the parties has decided to flout the temporary order without reasonable or lawful excuse, it seems to me this would be highly relevant to the shape of a final order. Similarly if there has been further intervention by CAS or the Society’s file has been re-activated, that might well be pertinent information. All of these issues remain within the mandate of the trial judge and should be addressed to her. It will be for her to determine what if anything should be considered by her and whether it should factor into her decision of the issues before her.

[25] The argument advanced by Mr. Ludmer that more conflicting narratives might prejudice the trial decision is not a valid reason for another judge to intervene. To the contrary it would be potentially unjust and impractical to permit the trial judge to make a decision about the future of these children in ignorance of the possibility that there have been significant changes she might have to consider. This is particularly so because the Family Law Rules ordinarily prevent any motions to change immediately after the trial.

[26] Intervention may not be justified on the basis of urgency. The brief hearing before Justice Doyle for leave to proceed as a matter of urgency is in no way binding upon me sitting as a motions judge nor was it intended to be. In any event, if it is necessary to alter the interim mid trial regime or to enforce it with additional orders, no one is in a better position to consider that than the trial judge. Some guidance in respect of urgency may be gleaned from the caselaw under Rule 14. Justice Wildman dealt with this in Rosen v. Rosen[^5] and Justice Belch dealt with urgency in Hood v. Hood.[^6] Those cases dealt with leave to bring a motion in advance of a case conference. The bar for another judge intervening while a trial decision is under reserve would be higher and not lower than that.

Disposition

[27] In summary, the motions before me are inappropriate and improper. They seek to have another judge intervene in matters before Justice Mackinnon.

[28] I am not adjourning the motions to the trial judge because the records contain massive amounts of material that may or may not properly be admissible. In fact Mr. Ludmer attempted to bring another motion to strike some of the material filed by Mr. Bowles.

[29] The proper approach is for counsel to jointly approach the trial judge for direction or for each party if they wish to bring a motion to re-open the trial or to alter the temporary order.

[30] I inquired with Justice Mackinnon and was advised that she could hear a motion to receive additional evidence tomorrow, July 21st and if necessary she could hear further evidence or submissions in the week of July 31st. Counsel are directed to appear before Justice Mackinnon tomorrow to address these matters.

[31] Each of the parties shall bear their own costs of these motions unless the trial judge orders otherwise. If and when there is further argument before the trial judge and if any of the material prepared for these motions has further utility for trial purposes, the trial judge may or may not decide to recognize those costs.

Mr. Justice Calum MacLeod

Date: July 20th, 2017

[^1]: Pursuant to an order of Kershman J. dated August 23, 2016 the parties and the children are to be identified only by initials in any court decisions. [^2]: McKay v. Proprietary Mines Ltd. 1938 284 (ON CA), [1938] 2 DLR 770 (note) and Jupp v. Jupp 2008 CarswellOnt 3756 (SCJ) [^3]: See Chitsabesan v. Yuhendran 2016 ONCA 105 and Pastore v. Aviva Canada Inc., 2012 ONCA 887 [^4]: 2016 ONCJ 65 [^5]: 2005 480 (SCJ) [^6]: 2001 28129 (SCJ)