The Children’s Aid Society had apprehended the parties young child at birth. The mother of the child did not oppose the Society putting the child in extended Society care but she did want access to the child. The father, however, believed that the child should be placed in his care without any restriction.
At trial, once the Society finished giving evidence in support of their position, rather than giving his own evidence, the father moved for a non-suit which is a motion “to dismiss the action on the ground that the plaintiff [or applicant] has failed to make out a case for the defendant [or respondent] to answer.” The father’s position was essentially that he did not believe the Society had made their case that the child was in need of protection and as such, that the child should be returned to his care. The judge reserved her decision until the end of the trial but eventually dismissed the motion for non-suit and made a decision that the child was in need of protection. However, the trial judge did then give the opportunity for the father to lead evidence in support of his position that even if the child was in need of protection, that the child should nonetheless be returned to his care. After hearing this evidence, the court determined that the child should be placed in extended Society care.
The father appealed this decision arguing that the trial judge did not deal with the motion for non-suit properly.
The Court commenced its analysis by reviewing the process by which a court must follow in dealing with motions for non-suits:
- The moving party is to be put to its election whether to call evidence
- Where the moving party elects to call evidence, the trial judge hears the non-suit motion but reserves decision until the end of the case
- Where the moving party elects to call no evidence, then, and only then, should the trial judge provide a final decision
- All the evidence is heard on both the protection and disposition issues in one stage of the trial.
Unfortunately in this case, the trial judge did not put the father to his election and the father never made his position clear. Instead, the judge dismissed the motion based solely on the evidence given by the Society that the child was in need of protection. Rather than deciding the rest of the issues of the case at this point, the judge then allowed the father to call evidence regarding where the child should reside in light of the fact that the child had been found to be in need of protection.
The Society tried to argue that even with this error, the appeal should be dismissed because the father had implicitly elected not to call evidence. The Divisional Court rejected this argument because the unfairness that had resulted could only be rectified by granting a new trial wherein the father would have the opportunity to present evidence before a decision is made.
The Divisional Court made it clear that in child protection cases where a motion to a non-suit is brought, the issue of disposition should not be tried separately from deciding whether the child is in need of protection. The Court said, “[t]runcating the trial process, as happened here, leads to risks that a second trial may be required if an appellate court disagrees with a decision granting a non-suit. The task of the trial court is to decide all the issues required for the matter to be laid to rest after a full trial”.
The Divisional Court granted the father’s appeal and found that the trial judge did in fact error by not putting the father to his election as to whether to call evidence on the issue of whether the child was in need of protection.
The Divisional Court ultimately granted a new trial before a different judge.
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