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procedural fairness


Justice George Czutrin rendered an important appeal decision (from a judge of the Ontario Court of Justice) on 20 June 2013: B. (A.) v. A. (N.L.) Justice Czutrin’s decision adopted the principles of procedural fairness that Gene C. Colman had advanced years earlier in a published article that is reproduced at this website

Justice Czutrin overturned a judge (from the Ontario Court of Justice – “OCJ”) who ran literally roughshod over the rights of the father to have a procedurally fair process. That OCJ judge had made a final order at a case conference with almost no real evidence and no effective notice that a final order would be sought at the case conference. The father had asked for an adjournment in a timely manner but that did not faze the OCJ judge who went ahead with the case anyway even though there was no urgency at all.

The Family Law Rules stipulate that if you want to obtain a final order at a case conference, then there must be admissible evidence and you must give clear and unequivocal notice that you are seeking such an order. The facts in this case failed to establish sufficient admissible evidence and clear notice of the order to be sought on a final basis. Even though the Rules theoretically allowed for a final non consent order at a case conference, Justice Czutrin could not conceive of a case where it would be procedurally fair to make a final order at a case conference unless that order was on consent.

The Ontario Court of Justice judge viewed the case as a done deal because the Office of the Children’s Lawyer had rendered a report that adopted the status quo with respect to custody/access. Such reports are not always followed at trial. The judge should not have considered the case closed just because of that report.

The father did not have a lawyer at the case conference. He had seen a lawyer prior and the lawyer correctly advised him that only procedural issues and discussions with respect to settlement would be entertained at the case conference. The mother had a lawyer. With no one to stand up for the beleaguered father, the judge rammed this decision through in an entirely unfair manner. He did so notwithstanding the correct approach (as set out by Justice Czutrin) being that a judge who is privy to settlement discussions should not adjudicate a case on a final basis. Justice Czutrin stated at paragraph 106:

If a judge expresses a view and then considers the conference briefs as evidence (unless there are unequivocal concessions) and thereafter disposes of substantive issues on a final basis in the absence of consent, this runs contrary to the objectives of the Rules. It undermines the ability of parties to come to conferences with resolution and compromise in mind and express settlement positions, for fear of their positions being considered evidence so as to dispose of the matter on a final basis.

This case highlights the dangers of being self-represented. While the residents of Ontario who go to court without a lawyer have an absolute right to expect procedural fairness and that the judges will obey the Family Law Rules, unfortunately, this does not always happen. At least if you have a family lawyer with you, chances are a bit better that the judge will not brazenly disobey the rules.

Let us close off with two quotes from Justice George Czutrin, from paragraphs 133 and 136 of his wise and well-reasoned procedural fairness decision:

133. To repeat, conferences are intended to assist in getting parties to a settlement or to trial readiness and to attempt to avoid motions. Conferences are not intended to be used as venues in which to determine opposed substantive matters on a final basis. They are not meant, and could not have been intended, to prevent a person from having an opportunity to be fairly heard according to the Rules. At conferences, it may often be appropriate to make procedural orders or temporary orders to preserve positions, provide temporary support (based on sworn financial statements and undisputed facts), ensure necessary disclosure, and move the case along. However, seldom (if ever) should a final order be made at a conference when it is opposed and not on consent.

136. In the end, the final orders made in this case were made inappropriately, incorrectly in law, and in a procedurally unfair manner.

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