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Procedural Fairness Essential in Family Law Cases

A Case Comment on B. (F.) v. G. (S.) and C.C.A.S. of Toronto, 26 April 2001, Ontario Superior Court of Justice, Justice Susan Himel

By Gene C. Colman – July 22, 2001

Procedural fairness is still an important element of justice under Ontario’s Family Law Rules. Sitting in appeal from a lower court disposition, Justice Susan Himel essentially tells us that one must not permit the expeditious procedures of the Family Law Rules to run roughshod over a litigant having a real opportunity to place her position before the court.

The facts could not have been worse for this fourteen-year-old mother who had enjoyed only minimal contact with her child pending the crown wardship hearing. It was apparent that she had difficulty communicating with her lawyers (the Children’s Lawyer and two subsequent lawyers). Her parenting plan, such as it was, lacked any real convincing aspect that it would benefit her child. But, that is not the end of the inquiry, according to Justice Himel. There must be procedural fairness, the judge tells us.

In the court below, Justice Marvin Zuker of the Ontario Court of Justice would not put up with any further procedural delays in a case that had already dragged on past all reasonable limits. Ontario’s Child and Family Services Act as well as the Family Law Rules mandate the parties to bring child welfare matters to a speedy conclusion. When the young mother could not keep her lawyer on board at the first day of trial, the judge took it upon himself to indicate that when the case next came back before him, he was prepared to consider the matter summarily. The Catholic Children’s Aid Society took the hint and filed extensive material. The young mother effectively had no real opportunity to respond to the summary motion that had been initiated by the judge. She asked the judge for an adjournment so she get another lawyer. Justice Zuker said “no” and proceeded to consider the CCAS’s extensive documentary evidence. He then heard from the young mother, her mother, and the father’s mother. CCAS counsel cross examined extensively. Justice Zuker granted the summary judgment motion – crown wardship with no access was the result.

Justice Himel gives a learned dissertation on the ins and outs of summary judgment motions under the Family Law Rules. Her discussion is complete, logical and compelling. This case is compulsory reading for any lawyer who plans to bring a summary judgment motion under those Rules. This writer would criticize that analysis only on one point: She finds that a judge can indeed initiate a summary judgment motion (even though Rule 16 clearly states that it is “a party” who may bring such a motion). The judge then finds that technically under the Rules, the young mother had adequate notice of this judge-initiated motion. But that (thankfully) was not enough to dispose of the matter. Justice Himel correctly goes on to consider whether Justice Zuker erred in refusing an adjournment to retain a new lawyer.

Justice Himel relies upon jurisprudence from the Supreme Court of Canada in finding that there must be procedural fairness in such weighty matters. She finds a positive obligation upon the court to ensure that a respondent in this youngster’s position has effective legal representation:

40 The Supreme Court of Canada in New Brunswick (Minister of Health & Community Services) v. G. (J.), supra, considered the rights of parents whose child is the subject of a child protection hearing. Chief Justice Lamer stated at p. 56:

When government action triggers a hearing in which the interests protected by s.7 of the Canadian Charter of Rights and Freedoms are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair.

A child protection hearing clearly triggers s.7 interests. Chief Justice Lamer held at p. 75 that “[s]ection 7 guarantees every parent the right to a fair hearing when the state seeks to obtain custody of their children.” Where parents are faced with the prospect of losing custody of their children through state intervention, they are entitled to representation by legal counsel at the hearing, and if they cannot afford legal representation, then the state has a duty to provide funding for legal representation. Effective parental participation at the child protection hearing is essential to determine the best interests of the child in circumstances where the parent seeks to maintain custody of the child. Chief Justice Lamer held that the state can remove a child from parental custody only in accordance with the principles of fundamental justice which are to be found in the basic tenets of our legal system. At pp.81 and 82, he wrote:

Thus, the principles of fundamental justice in child protection proceedings are both substantive and procedural. The state may only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for making this determination.

For the hearing to be fair, the parent must have an opportunity to present his or her case effectively. … If [they are] denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child’s best interests. There is a risk that the parent will lose custody of the child when in actual fact it might have been in the child’s best interest to remain in his or her care.

42 As stated above, in a child protection proceeding, a parent must have the opportunity to present his or her case effectively. Participation in the hearing is essential to determine the best interests of the child where the parent seeks to maintain custody. As the court said in New Brunswick (Minister of Health & Community Services) v. G (J.), supra at p. 84:

In proceedings as serious and complex as these, an unrepresented parent will ordinarily need to possess superior intelligence or education, communication skills, composure, and familiarity with the legal system in order to effectively present his or her case.

As was the situation in that case, in the proceeding before Zuker J. there was no evidence in the decision or on the record to suggest that the appellant possessed such capacities.

43 Furthermore, in Ontario, the s. 7 rights of any parent involved in child protection proceedings is coupled with the legal obligation under s.38(5) of the Child & Family Services Act for a minor parent to be represented by the Children’s Lawyer unless the court orders otherwise. In my view, legal representation of F.B. in this case was necessary. While in some cases it is the fault of the litigant that opportunities for legal representation are not used and delay ensues, in this case, the court could have directed the Children’s Lawyer to act and to provide representation within an expedited time frame. By proceeding with the summary judgment motion on February 28, 2000 after removing counsel for the appellant from the record, I conclude that the court below erred by breaching the s.7 rights of the appellant.

Justice Himel also quite correctly took issue with the manner in which Justice Zuker conducted his mini hearing. She stated at paragraph 44:

While hearing defence witnesses may have appeared to be a fairer way to proceed in the circumstances of this particular case, having them testify without counsel and without preparation for this type of hearing may have negated any procedural fairness that the court was attempting to provide. Proceeding with the summary judgment motion in the absence of legal representation was a denial of the appellant’s s.7 rights and right to due process.

Justice Himel was somewhat charitable to Justice Zuker. One of the grounds of appeal was that Justice Zuker had “pre-judged the issues”. A reading of this reported decision leaves any objective observer with the inescapable conclusion that Zuker, J had indeed made up his mind even before he heard any of the evidence from the mother and the other two witnesses. Nonetheless, Justice Himel finds (at paragraph 46) that the court below did not pre-judge the issues, but the issue was not whether there was “a lack of impartiality” but “whether there was due process and whether the section 7 rights of the parties” were respected.

Justice Himel concedes that the evidence at Justice Zuker’s hearing “was overwhelming” (paragraph 51). But that is not the end of the inquiry for the respondent’s section 7 Charter rights were so severely violated that one cannot rely upon the evidence. Her Honour sensibly states:

On that evidence, the court may have correctly determined there was no genuine issue for trial. However, this evidence was adduced in a hearing which lacked procedural fairness. That the ultimate decision was sound based upon the evidence led does not, in my view, justify the result. Had the rights afforded to the appellant under s.7 of the Charter been protected at the hearing, it is conceivable that the evidence at the hearing would have been different and may have raised a genuine issue for trial. One cannot speculate on what the evidence might have been, how it would have been presented and what impact it would have had on the ultimate decisions before the court.

And at paragraph 54, Justice Himel adds along the same vein:

The s.7 rights of the appellant were infringed by requiring her to proceed without counsel on the date her solicitor was ordered removed from the record. The process used by the court in ascertaining the evidence was expeditious but lacked fairness. The motion for summary judgment was so unilateral in its approach that the decision from the court below cannot be permitted to stand in these circumstances.

Justice Himel has struck a much-needed blow in favour of procedural fairness. This writer submits that there has been an unfortunate tendency of late to give short shrift to procedural fairness. The stakes in this case were understandably high (crown wardship without access). One would hope, nonetheless, that this case might have wider implications beyond the realm of crown wardship. Let this case serve as a wake up call to judges of first instance. We need more sensitivity to procedural fairness under the Rules. Expeditious resolution is indeed important. However, expediency and speed should not trump the time honoured Latin maxim: audi alteram partem. Hear the other side!

Our family courts are facing the challenge of many self-represented litigants. In order to truly “hear the other side”, judges have to be particularly diligent to ensure that competing points of view are effectively vetted. The judge has heard thousands of cases; based upon extensive experience as a lawyer and a judge, it might be a natural human tendency to prejudge the outcome and get there quickly. There is a strong temptation to proceed expeditiously, whether by way of summary judgment or otherwise. Indeed, Rule 2(3) mandates the court to be creative in its manner of dispute resolution. But this Rule still requires the judge to ensure “that the procedure is fair to all parties”. Hopefully, Justice Himel has cautioned all of us that weighty issues require a procedurally fair process – even when the facts appear to be overwhelming.


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