Superior Court of Justice - Ontario

COURT FILE NO.: FS-12-76705-01 DATE: 2019 02 20

RE: TEODOR CIPRIAN BORS v. ANA-CRISTINA BORS

BEFORE: COROZA J.

COUNSEL: Brian Ludmer, for the Applicant Robert Fernandes, for the Respondent

Endorsement (Request to Re-Open)

[1] Ciprian Bors, the Applicant, and Ana Bors, the Respondent, have two children. I will refer to them using initials. M. is their 12-year-old daughter, and AD. is their 7-year-old son. Ciprian and Ana separated in 2012.

[2] Snowie J. made a final order on consent in relation to custody and access on May 11, 2015. This final order gave Ana sole custody and Ciprian access to the children every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. or until Monday at 6:00 p.m., if that day is a statutory holiday.

[3] I heard a motion to change that final order on August 13, 2018. I reserved judgment. The judgment was released on January 31, 2019. Ultimately, I ordered that the matter proceed to trial. On an interim basis, I also increased access to Ciprian. I will not repeat the background to the litigation that I have provided in those reasons: Bors v. Bors, 2019 ONSC 765.

[4] On January 25, 2019, Ana filed a motion with the Court requesting to file progress reports of the children's counselling sessions with FVB Psychologists as fresh evidence. According to Ana, while awaiting a ruling on Ciprian's motion, she unilaterally arranged for counselling for the children with FVB. Ana requested that I consider these reports as part of the evidence in deciding Ciprian's motion. For his part, Ciprian filed an affidavit with the Court on January 30, 2019 opposing Ana's request.

[5] I was not made aware of this material until February 4, 2019. By that time I had already released my reasons for judgment.

[6] I wrote to the parties and advised them that I would suspend my orders made on January 31, 2019 pending a hearing on whether I should re-open the motion that I heard on August 13, 2018.

[7] The parties appeared before me on February 15, 2019. Each party filed an affidavit on the application to re-open.

[8] The parties do not dispute that I have jurisdiction to re-open the motion. Ana argues that the progress reports contain information that could be important in determining what is in the best interests of the children. Ciprian submits that these reports could not have affected my reasons for ruling and in any event, were improperly obtained.

[9] After considering the arguments brought forward by each party, I decline to re-open the motion. Ana has not persuaded me that these progress reports are cogent evidence that would have affected the result. Therefore, my interim orders remain and are in effect. I will remind the parties that interim orders of this Court must be followed. There has been a suggestion made by Ciprian that Ana is in contempt of my orders made on January 31, 2019. However, I need not decide that issue and I will make no further comment on the accuracy of that claim.

Analysis

[10] This Court has an inherent jurisdiction to set aside or change an order to prevent a miscarriage of justice: Neathery v. Cottle, 2012 ONSC 3403. This is consistent with the primary objective of the Family Law Rules - to enable the Court to deal with cases justly.

[11] It seems to me that the test to re-open this motion should be the same as the test to re-open a trial. First, would the evidence, if presented at the motion, probably have changed the result? Second, could the evidence have been obtained before the motion by the exercise of reasonable diligence?: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983.

[12] I also acknowledge Ana's argument that the test should be applied in a flexible manner because the interim order of January 31, 2019 affects very young children. The Court of Appeal has held that there is often a need for up-to-date information on children and that it is often in the interests of justice to receive this information before deciding the fate of such children: H.E. v. M.M., 2015 ONCA 813.

[13] I now turn to the issues.

Issue 1: Would the evidence, if presented at the motion, probably have changed the result?

[14] Respectfully, I believe the answer to this first issue is no.

[15] To answer this first issue, I must assess the cogency of the proposed evidence. The problem is that is there is no evidence before me that even summarizes the content of the reports. Indeed, counsel for Ana has admitted he has not reviewed the reports. Furthermore, Ana has not reviewed the reports. Therefore, assessing the cogency of the evidence on this record is challenging.

[16] I acknowledge that the reports may be relevant in the sense that they will reveal the children's mental health. However, while the question of the mental health of the children is an important one, the real issue is whether the reports are sufficiently probative that it could reasonably be expected to have affected my reasons for judgment released on January 31, 2019.

[17] Distilled to the essentials, Ana's reason for unilaterally sending the children to the FVB is because they are having recurrent episodes of stress and anxiety. According to Ana the children need to develop effective coping strategies to deal with these issues.

[18] It is my view, that if the reports contain information regarding the stress and anxiety of the children and the coping mechanisms that are being used, it would not bear upon a decisive or potentially decisive issue that was argued before me on August 13.

[19] The decisive question on that motion was whether Ciprian's access should be increased. No one disputes that the children are exhibiting signs of stress and anxiety. Indeed, the OCL report that was filed on that motion refers to these signs. As I see it, that stress and anxiety has resulted from the breakdown of the relationship of their parents. In my respectful view, a progress report that discloses how the children are dealing with stress does not appear to possess any probative force that could have affected the result of the motion argued on August 13, 2018.

Issue 2: Could the evidence have been obtained before the motion by the exercise of reasonable diligence?

[20] There is an argument to be made that the unilateral decision to enroll the children could not have been made before the motion on August 13, 2018. Although, this matter has a lengthy history it appears that the decision to arrange for counselling was only made by Ana and her counsel in September of 2018.

[21] I acknowledge that there would be nothing wrong with enrolling the children in counselling. However, the manner in which this was done was improper.

[22] Prior to August 13, 2018, I made an interim order on June 29, 2018 that the children should attend separation counselling by July of 2018. I also ordered that the parties make efforts to agree to a counsellor. The intent of this order was to enroll the children in counselling to address the concerns made by the parties that the children are suffering. Furthermore, I requested that the parties attempt to come to an agreement with the counsellor.

[23] The order of June 29, 2018 explicitly requested that the parties make efforts to agree to a counsellor and that the cost be equally shared. It seems to me that unilaterally enrolling the children in counselling without notice to Ciprian is not consistent with my orders of June 29. At the very least, counsel should have sought clarification from this Court if the order I made was ambiguous about the nature of the counselling that the children should receive.

[24] I have concluded that the decision to unilaterally proceed in the absence of any input from Ciprian has undermined the purpose of the order that I made on June 29. At that point, I was urging the parties to try and work together. I do not see how my order can be read in any other way.

[25] Therefore, while I agree that the reports could not have been obtained with reasonable diligence, this factor does not favour re-opening because of the manner in which the materials were created. In other words, the urgency of the request that I review these records cannot be justified where Ana has been responsible for creating an artificial sense of urgency. If I were to admit these progress reports, I would be rewarding conduct that in my view undermines the purpose of the June order.

Conclusion

[26] I make one final observation. While I do not dispute that the progress reports may be credible or relevant to the issue of the state of the mind to the children, I must also consider other interests in determining whether it is in the interests of justice to exercise my inherent jurisdiction to re-open.

[27] In my view, the interests of Ciprian, including his ability to have access to his children, must be kept in mind. Re-opening this motion would cause further delay to that access. As counsel for Ciprian points out, there is a live issue about the neutrality of these reports. It seems to me that counsel would have to be given an opportunity to cross-examine the author of these progress reports in the same manner that I allowed counsel for Ana to cross-examine the author of the OCL report.

[28] Ana's application to re-open is dismissed.

[29] On the issue of costs, I will receive costs submissions with respect to this application in writing. The submissions can be included in the costs submissions that are to be filed as a result of my decision of January 31, 2019.

Coroza J. DATE: February 20, 2019