r v. Sengmueller, 2019 ONSC 1954

CITATION: J.A.B. v. M.G., 2019 ONSC 1954 COURT FILE NO.: 3357/17 DATE: 2019 03 27 SUPERIOR COURT OF JUSTICE - ONTARIO RE: J.A.B., Respondent on Appeal and on Motion AND: M.G., Appellant and Moving Party BEFORE: Conlan J. COUNSEL: Martin Schulz, Counsel for J.A.B. M.G., Self-Represented HEARD: March 27, 2019 ENDORSEMENT ON MOTION FOR LEAVE TO ADDUCE FRESH EVIDENCE ON APPEAL I.

Introduction [1] In fairly extensive typed Reasons for Judgment dated July 21, 2017, Justice Kurz, then of the Ontario Court of Justice,resolved a dispute between two parents: mother J.A.B. and father M.G. [2] The parents could not agree on whether their teenage son, L.P.B.G., should be prescribed medication for his diagnosedAttention Deficit Hyperactivity Disorder (“ADHD”). The mother said yes. The father said no.

The Judge agreed with the mother. [3] Among other things, the Judge ordered that J.A.B. have the exclusive right to consent to the prescribing of ADHD medicationto the child and that M.G. not interfere with that. [4] The father has appealed the said Final Order.

In the context of that Appeal, the father moves for an Order to allow him to fileevidence that was not before the lower Court: a 2010 study about ADHD medication commissioned by the Government of WesternAustralia, Briefs and transcripts from Case Conferences that preceded the Order being appealed from, a missing excerpt from a transcriptof the proceeding on July 21, 2017 (the date that the Order under review was made), and tutoring receipts and school records related tothe child’s 2017-2018 and 2018-2019 academic years. [5] The father’s Motion is opposed by the mother. II.

The Test [6] Both sides agree on what test ought to be applied to the father’s Motion to adduce fresh evidence on the Appeal: that set outby the Court of Appeal for Ontario in Sengmueller v. Sengmueller (1994), (ON CA), 17 O.R. (3d) 208. The partiesdisagree only on the application of that test. [7] There are three criteria for the admission of fresh evidence on appeal: (

i) the tendered evidence must be credible, and (ii) itmust not have been able to be obtained, with reasonable diligence, before the decision under review was made, and (iii) it must be seen asbeing likely conclusive of an issue on appeal, if admitted. III. Decision [8] We can glean much from one paragraph of Justice Kurz’s Reasons for Judgment, paragraph 85. His Honour found thatADHD medication was the best form of therapy for the child.

And His Honour found that the father was not open to ADHD drugtherapy. [9] M.G.’s Appeal has no chance of success unless it is determined that one or both of those findings was in error. [10] On the first finding, M.G. submits that His Honour misinterpreted and/or overstated the medical evidence that was beforehim, including the Psycho-educational Test Report authored by Dr. Saunders and dated December 2016. I express no view on whetherthere is merit to that submission. What I do know for certain is that the proposed fresh evidence is neither necessary nor helpful todetermining the merit of that submission.

[ 11 ] On the second finding, M.G. submits that His Honour erred in misinterpreting the father’s position vis a vis medication for his son’s ADHD. M.G. asserts that he was never completely opposed to any medication. Again, I express no view on whether there is merit to that submission, but certainly the proposed fresh evidence is not relevant to determining the merit of that submission. [ 12 ] Put another way, M.G. wants to argue that His Honour committed palpable and overriding errors of fact which justify intervention on appeal. He is free to make that argument.

He has all the tools necessary to make that argument, quite apart from the proposed fresh evidence. [ 13 ] The bottom line is this.

Assuming, without deciding, that it would be appropriate for an appellate court in a family law proceeding to review Briefs and transcripts from Conferences in the lower Court, and assuming, without deciding, that a seven year-old study from another country is relevant and could not have been obtained and put before the lower Court, and assuming, without deciding, that the tutoring receipts and school records sought to be tendered by the father are relevant, the father’s Motion is defeated on the third criterion. [ 14 ] None of the materials sought to be tendered by the father could possibly be seen as being likely conclusive of an issue to be decided by the Justice hearing the Appeal.

More specifically, none of the materials is likely conclusive of determining that the Judge at first instance erred in either or both of the findings outlined above. [ 15 ] On that ground alone, the Motion must be dismissed. So ordered. [ 16 ] There is one exception. If it is true that there is a missing portion of the transcript of the proceeding in the Ontario Court of Justice on July 21, 2017, then that shall be cured forthwith. [ 17 ] Finally, counsel for the mother submits that there are materials filed by M.G. in the Appeal Book that should be struck. I decline to deal with that issue today.

There is no Motion brought by the mother asking for that relief. The father did not address that issue in his submissions today. And that request can be taken up with the Justice hearing the Appeal, if not before. Conlan J. Date: March 27, 2019