Chand v. Chand* - Procedural Fairness Under Attack

In Chand v. Chand, Justice H. McGee had before her a set of facts (unsworn though) that called out for prompt judicial action. The picture presented to the reader in the case report was that the father appeared to be determined to minimize the children’s time with their mother. In fact, the mother alleged that he had in 2008 gone so far as to submit a false consent to the court to obtain a consent order in chambers (although he vehemently denied that the consent was a forgery). Why there were multiple case conferences over the space of a year and half is difficult to comprehend from the reported decision. Why mother’s counsel did not just bring a motion following the first case conference is beyond this writer’s comprehension.

In any event, the matter came up before the court at yet another case conference before Her Honour. Justice McGee appeared to be outraged by the extent to which the father had gone to interfere with the children’s relationship with their mother. The judge relied upon an unsworn expert’s report contained in the mother’s Case Conference Brief that declared that the mother’s signature on the 2008 consent order was not hers. There was no indication anywhere in the reported decision that affidavit evidence was before the court. On the contrary, Her Honour references the unsworn allegations contained in the parties’ Case Conference Briefs.

The mother had given ample notice in her Case Conference Brief that she was seeking expanded access. Indeed, Ontario Family Law Rule # 17(8)(b) tells us that a judge can make a temporary or final order at a case conference “if notice has been served”. Given that Her Honour found that notice had indeed been served, she proceeded to make an order significantly expanding the mother’s access from a 20 hour visit every fourteen days to something approaching conventional normalcy.

Assuming the facts as related were accurate, one cannot argue with the substantive result in this case. Only in the most extreme cases should children be denied a relationship with a parent. What this writer does protest is the manner in which the order was made. It is a basic principle of our common law legal system that contested temporary or interim orders are made based upon sworn evidence. That sworn evidence is subject to testing and probing through cross-examination. Once we allow contested orders to be made based upon unsworn reports and unsworn submissions in briefs, from there it is not too far a stretch to rely upon ad hoc submissions of lawyers. We thus descend into sheer anarchy. (Indeed, at paragraph #18, Her Honour bases her decision in part on the contradictory submissions of counsel with respect to the degree that father’s counsel was involved in negotiations to expand the access.) We will be left with a free for all, “anything goes” system at case conferences. We may as well throw any basic concepts of procedural fairness out the window if the Chand decision is followed.

What is distressing to those of us who toil in the family law trenches is that Chand - like decisions are made all too frequently by judges who are prone to run roughshod over the rules and basic principles of procedural fairness. These judges bank on the following factors:
1. Clients lack financial resources to apply for leave to appeal.

2. The time involved to effectively process a leave to appeal motion and to argue an appeal if leave is granted effectively discourage such motions.

3. Events in family law often move rapidly so that the new reality on the ground supersedes the situation making the leave motion or appeal if leave is granted largely academic.

The net result is that it is difficult to mount any effective legal challenge to judicial over stepping of reasonable boundaries.

To intellectually support her decision, the judge relied upon the “primary objective” rule that we know so well: “The primary objective of these rules is to enable the court to deal with cases justly.” She also relied upon Rule 2(3) which encourages all of us involved in this system to deal with cases in a manner that saves expense and time and takes due cognizance of court resources. This writer submits that nothing in the Family Law Rules ought to trump a cardinal principle of our system that contested orders must be based upon evidence. And “evidence” must be sworn. It’s basic.

There were alternatives open to the court. The judge could have directed that the parties file affidavit material and that the matter proceed as a motion on an urgent and expedited basis. The judge could have attempted to persuade the father to accept an expanded access regime on consent, telling the further that if these facts were to come before the court on motion, there would be very little doubt as to the result. But to make an order that was not supported by sworn evidence is far too serious a departure from elementary principles of procedural fairness upon which our legal system is based.

Counsel for the father has filed a motion for leave to appeal.

Gene C. Colman - May 9, 2010 [This case comment was published in Ontario Family Law Reform Reporter, Vol. 23, Issue 11, May 2010.]

* Chand v. Chand, digested at Ontario Family Law Reform Reporter, Vol. 23, Issue 10, p. 168. OFLR Editor, Jeffery Wilson, prophetically introduces this case at p. 154: “Get ready, case conferences as motions before motions.”

Gene C. Colman practises family law from Toronto. He is a Founding Editor and Advisory Board Member of the Canadian Journal of Family Law. The views expressed here are entirely his own. Comments (both pro and con) are welcome.

For the perspective of a former Alberta lawyer, click here.