Supreme Court

Decision Information

Munroe-Unsworth v. Unsworth

Court	Supreme Court
Date	2024-07-22
Citation	2024 NSSC 213
Docket	1206-7837
Judge/Registrar/Adjudicator	MacLeod-Archer, Lee Anne (Honourable Justice)
Document Type	Decision

Decision Content

SUPREME COURT OF NOVA SCOTIA

(FAMILY DIVISION)

Citation: Munroe-Unsworth v. Unsworth, 2024 NSSC 213

Date: 20240722

File No: 1206-7837

Between:

David Paul Unsworth

Petitioner

v.

Jillian Munroe-Unsworth

Respondent

ENDORSEMENT

Corrected Decision: The text of the original decision has been corrected according to the attached erratum dated July 22, 2024.

Judge:

The Honourable Justice Lee Anne MacLeod-Archer

Counsel:

Jillian Munroe-Unsworth, self-represented

Candee McCarthy, counsel for the Petitioner

By the Court:

Facts

[1] The parties are the parents of three dependent children, who are now teenagers. They have been separated for 7 years and are involved in a protracted, high-conflict parenting dispute.

[2] Since 2020 there’s been an inordinate number of court appearances, as well as numerous orders issued by the court. I rendered a decision on September 3, 2021, granting primary care and final decision making to Mr. Unsworth, with Ms. Munroe-Unsworth being entitled to parenting time under a specified schedule, plus extended holiday, summer, and special occasion time. That order was granted under the Parenting and Support Act, R.S.N.S. 1989, c. 160 (“PSA”). Mr. Unsworth has since filed a petition for divorce.

[3] The 2021 PSA order included very detailed clauses dealing with issues such as transportation and communication, in an attempt to reduce conflict between the parties. Unfortunately, that order isn’t being followed and the conflict has continued.

[4] Ms. Munroe-Unsworth filed a motion to enforce her parenting rights under the 2021 order and evidence was heard on April 25, 2024. I reserved decision, but while that decision was pending, Mr. Unsworth filed a motion to adduce fresh evidence. This endorsement deals with that motion.

[5] Mr. Unsworth’s motion doesn’t reference Civil Procedure Rule 82.22 (“CPR”) which governs this type of motion. It states:

82.22 Varying order or re-opening proceeding

…

(2) A party may make a motion for permission to present further evidence before a final order and after one of the following events:

(a) the party closes the party’s case at trial;

(b) the party chooses to present no evidence at trial;

(3) A party may make a motion to re-open the trial or hearing of a proceeding concluded by final order only in the limited circumstances in which the re-opening is permitted by law.

[6] Instead, Mr. Unsworth’s motion references “Caselaw on Re-opening a proceeding” and CPR 23 which simply permits the filing of a motion.

[7] Along with the motion, Mr. Unsworth filed an affidavit in accordance with CPR 23.08. However, it is non-compliant with CPR 39.02(2) which states:

39.02 Affidavit is to provide evidence

(1) A party may only file an affidavit that contains evidence admissible under the rules of evidence, these Rules, or legislation.

(2) An affidavit that includes hearsay permitted under these Rules, a rule of evidence, or legislation must identify the source of the information and swear to, or affirm, the witness’ belief in the truth of the information.

[8] His affidavit is rife with hearsay and statements not attributed to an identified source. It also contains assumptions arising from that information.

[9] Ms. Munroe-Unsworth filed a response affidavit which is likewise problematic. It was unsworn and contains hearsay.

[10] Mr. Unsworth’s brief asserts that during the weekend visit, Ms. Munroe-Unsworth was not supervising the children properly, and that they were left alone for so long that Mr. Mason’s daughter called 911. It also says that two of the children were subject to police interviews and that Ms. Munroe-Unsworth told police that Mr. Mason wasn’t present at the hotel. None of this has been proven to be true. However, it speaks to the high level of distrust between the parties and the frailty of hearsay reports.

[11] In support of their positions, both parties cite 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, which references a two-stage test for re-opening evidence as articulated in Scott et al. v. Cook et al., [1970] 2 O.R. 769.

[12] Ms. Munroe Unsworth’s brief also references Barendregt v. Grebliunas, [2021] S.C.J. No. 101, which dealt with the issue of fresh evidence vs. new evidence in the family law context.

[13] Neither party referenced the leading case of Palmer v. The Queen, [1980] 1 S.C.R. 759, which was discussed by the Nova Scotia Court of Appeal in T.G. v. Nova Scotia (Minister of Community Services), [2012] N.S.J. No. 215, and more recently in Nova Scotia (Community Services) v. NL, WM, [2023] N.S.J. No. 236.

[14] In NL (supra), Marche, J. noted:

12 In Barendregt, supra, the Supreme Court of Canada confirmed the test set out in Palmer, supra, as the appropriate method to determine whether new or fresh evidence should be considered. The Palmer test is "purposive, fact-specific and driven by an overarching concern for the interests of justice" (Barendregt, supra., para. 32). It applies to "new evidence" (evidence of events that occurred after trial) as well as "fresh evidence" (evidence of events that occurred before trial) (Barendregt, supra., para. 48).

…

15 The last three criteria of the Palmer test are meant to promote a just result in the context of the proceedings. The focus, when assessing these criteria, is on the evidence itself. Evidence should only be admitted when it is relevant, credible, and of sufficient probative force, when considered with the other evidence adduced, to affect the determination of issues in dispute. Evidence that falls short of these standards should not be admitted (Barendregt, supra., paras. 44-45).

…

Reliability

34 I have serious reservations about the reliability of the evidence related to the interview with AB. If I were to grant the Minister's motion to admit further evidence, there would likely be a second stage of assessment, utilizing the principled approach analysis of necessity and reliability at a voir dire, of the admissibility of the child hearsay statements. …

…

38 Having found the weight to be assigned to AB's out of court statements, should they be admitted, is likely to be low, then it follows that the impact of such evidence upon the ultimate determination of the salient issue is also minimal.

...

Conclusion

…

40 … Rote reference to a child's best interest will not automatically dimmish the requirement to have acted with due diligence before seeking to admit further evidence. Similarly, it is insufficient to point to the vastness of evidence that might factor into a best interest analysis when assessing probative force. It remains necessary to demonstrate the proffered evidence, if believed, would impact the determination of the issue in dispute.

41 The Minister argues it is in AB's best interests for the Court to hear further evidence so that it can make a fully informed decision with "all available evidence." The interests of children are best protected, however, through a careful and considered application of the Palmer test to any such available evidence to ensure the appropriate balance between finality and a just result in child protection cases is met.

[15] The parties concede that this motion involves new evidence that post-dates the April hearing.

[16] I accept that the proposed evidence could be relevant to the decision I must make on Ms. Munroe-Unsworth’s motion to enforce parenting time.

[17] Next, I must consider the credibility of the proposed evidence. Reliability forms part of that analysis. However, some of the proposed evidence is hearsay which is not necessarily reliable. If Mr. Unsworth wishes me to consider that evidence, then I would have to conduct a voir dire to determine its reliability and admissibility.

[18] I accept that it’s likely that the new evidence (if believed) would affect the outcome of the motion filed by Ms. Munroe-Unsworth.

[19] Lastly, the evidence must be considered in the context of the children’s best interests. If Mr. Unsworth’s motion is successful, will it mean that this matter will be further drawn out? Is that in the children’s best interests? Or does the introduction of new evidence serve the children’s best interests?

[20] Ms. Munroe-Unsworth filed her motion to enforce parenting time on January 31, 2024. Due to changes in her counsel, it could not be heard until April 25, 2024. A decision was pending when Mr. Unsworth filed his motion on May 15, 2024. His motion was heard on July 5, 2024.

[21] I’m satisfied that if Mr. Unsworth’s motion is successful, it would not result in undue delay. I need not admit all of the proposed evidence. I can admit the relevant evidence which is credible, exclusive of hearsay. That avoids the need for a voir dire and thus avoid delays.

[22] The children’s interests are best served by bringing Ms. Munroe-Unsworth’s motion to enforce the 2021 order to a conclusion. Having all relevant and credible evidence considered by the Court is also in their best interests.

[23] I am prepared to admit the following evidence:

•

The uncontested facts: that a 911 call was placed while the children were in their mother’s care at a local hotel, and that Mr. Mason was present in the hotel during that visit.

•

The police report is credible evidence of what transpired with the 911 call, and I am prepared to admit it as well.

•

I am also prepared to admit other credible (non-hearsay) evidence about the visit, as presented on the hearing of this motion.

[24] My findings, based on the evidence I’m prepared to admit, are as follows:

a.	The parties agreed that Ms. Munroe-Unsworth would have an overnight visit with the children in Sydney on the Mother’s Day weekend (May 11 – 12th).
b.	Mr. Unsworth was aware that the visit would take place at a hotel, as Ms. Munroe-Unsworth lives outside of the area.
c.	Mr. Unsworth specifically asked if Ms. Munroe-Unsworth would have a sober adult present, if she could confirm who else would be staying at the hotel during the visit, and whether she would be driving during the visit. He asked this because of prior concerns canvassed at the April hearing.
d.	Ms. Munroe-Unsworth told Mr. Unsworth that it the children would be staying in a room with her and nobody else, though she did say that Jeff Mason’s daughter would likely be with her.
e.	Ms. Munroe-Unsworth confirmed that Mr. Mason would not be seeing the children.
f.	Mr. Mason was a guest at the same hotel as Ms. Munroe-Unsworth, staying in a room near hers.
g.	Ms. Munroe-Unsworth knew that Mr. Unsworth did not want Mr. Mason around the children, as Mr. Mason has a criminal record.
h.	Ms. Munroe-Unsworth chose not to tell Mr. Unsworth that Mr. Mason would be in the same hotel, knowing that Mr. Unsworth would refuse the visit if he knew.
i.	Mr. Mason’s daughter dialed 911 from Mr. Munroe-Unsworth’s room and hung up.
j.	Police responded to the 911 call and interviewed Mr. Mason, who reported that it was a misdial.
k.	The police did not speak with Ms. Munroe-Unsworth or the Unsworth children.
l.	The police report identifies Mr. Mason as being located at 560 King’s Road, suite #114 which was Ms. Munroe-Unsworth’s room, according to the invoice she provided for the room charge.
m.	The invoice for Mr. Mason’s room identifies his room as #110.
n.	Ms. Munroe-Unsworth was in the bathroom in the same hotel room as the children (#114) when the 911 call was made.
o.	The children were not left unattended in the room when the call was placed.
p.	The Unsworth children had access to a cell phone while at the hotel.
q.	Mr. Unsworth didn’t receive a call from any of the children to advise of any problems while they were with their mother.

[25] I will deliver a decision on Ms. Munroe-Unsworth’s motion to enforce the 2021 order based on the evidence advanced on April 25, 2024 and the new evidence I’ve admitted on this motion.

MacLeod-Archer, J.