A recent Ontario decision explored the question of whether a court could hear additional new evidence once motions had already been argued, but before a final decision had been issued.

What Happened?

At issue was a dispute between a father and a daughter. The daughter had brought a motion for temporary child support, and the father had brought a motion seeking to dismiss her motion. The court heard both motions, but reserved judgment on both (i.e. did not make any final decisions).

The father then returned to court and attempted to persuade the court to allow him to provide “further evidence” that a company that he had a 60% interest in had been ordered into receivership. This evidence was presumably intended to prove that the father would not be able to comply with his child support obligations.

Introducing New Evidence

The court considered some technical legal issues, including whether the judge was functus officio. This is a Latin term meaning “having discharged one’s duty” or, essentially, having performed one’s task. Where a judge is functus officio¸ he or she has fulfilled their function, the matter is done, and no new evidence can be presented.

Here, the court recognized the well-established legal principle that a trial judge is not functus officio until he or she has “finally disposed of the case”, and another well-established principle that an order can always be changed, withdrawn, or altered until it has been drawn up, passed, and entered. In this case, the judge stated that:

As I have not issued a ruling, let alone granted an order that has been entered, I clearly am not functus.

The court then noted that the Family Law Rules granted him the authority to allow further evidence to be filed even after arguments in a motion had concluded, but noted that the rules did not tell him how to exercise this discretion.

The court reviewed the test for permitting fresh evidence following the hearing of a motion but before a decision had been released. The court noted that this test was “more relaxed” than it would be had the father made his request for new evidence after the court’s decision on the two motions, but concluded that the father had failed “to meet even a relaxed test for admission.”

The court noted that in situations where fresh evidence is sought to be introduced when a matter has been heard, but a decision has not yet been released, courts must take a “somewhat relaxed approach”, but one that is concurrently “mindful of the need to avoid never ending evidence”:

… the admission of fresh evidence after a motion is heard should be very much the exception rather than the rule. Parties should not wait to hear argument on the evidence already before the court or even judicial comment on that evidence during the course of argument, before deciding to provide further evidence to buttress their case. Further, evidence must be led to show that the fresh evidence may have an effect on the result.

Father Brought Little New Evidence

In this case, the court noted that the father had provided no direct evidence and no arguments as to why the information about the receivership would affect the court’s determination of the issues in the two motions.

In addition, the father had not yet been required to make full financial disclosure to the daughter with respect to his income from the company in question, or any other income sources. Instead, he had sought to provide only limited disclosure and to limit his disclosure obligations to only his three prior tax returns and related assessments, as well as his most recent statement of earnings from the company in question. This had been the only information presented.

The court noted:

It may be possible that the… receivership may influence [the father’s] ability to pay. But the onus is on hi[m] to provide evidence showing that to be the case. Yet in the materials filed in support of this motion, [the father] has not informed me of the manner in which he says that the receivership will affect his income. It may be that the receivership will affect only his assets rather than his income, or vice versa. [The father] does not say.

The court did not allow the father to present the new evidence.

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