Dispute Resolution. Procedural Fairness. These are crucially important concepts.
Many thanks to my esteemed colleague, Philip Epstein, for granting permission to publish here his report with respect to the expected expansion of unified family courts in Canada and particularly in Ontario. Published with permission from Westlaw's "Epstein's This Week in Family Law, Fam. L. News. 2018-13 [copyright Thomson Reuters Canada Limited]:
Procedural Fairness v. Procedural Anarchy: The Ontario Court of Appeal in Frick v. Frick 2016 ONCA 799 has attempted to promote procedural fairness. While partially successful in that endeavour, the court has unfortunately encouraged procedural anarchy.
by GLORIA ANTWI - Associate Counsel at the Gene C. Colman Family Law Centre
Procedural Fairness is crucial for an effective judicial system. And it's not just an issue of 'fairness' to parents; rather, to protect the most vulnerable in society - children - there need to be solid safeguards in our family law system to preserve and indeed promote parental/child relationships. The use of summary judgment remedies has been particularly destructive of families in the child welfare system, as I have commented previously. In addition, I have already warned of the emerging trend to deny to litigants generally their day in court.
We have previously commented upon procedural fairness in child welfare cases and the role that summary judgment motions play: Part 1 Part 2. We have called for reforms. The growing threat to procedural fairness principles has been further exacerbated by the Supreme Court of Canada decision, Combined Air when it may be applied to child welfare cases. It has already been applied to at least one family case - Jivraj v. Jivraj.
There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal (Ontario Family Law Rules, R. 24(1)). There is, however, no such presumption for costs in a child protection case (Rule 24(2)). Does that mean that a successful parent can never obtain a costs order against a children's aid society? Let us delve a little further.
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 web site
In part 1 of this blog post, I wrote: "Justice J. deP. Wright has issued a brave appeal decision: R.(C) v. C.A.S. of the District of Thunder Bay (Jan. 30, 2013). He criticizes courts and agencies that run roughshod over the procedural rights of parents." Let's examine some different ideas to protect parents' procedural rights and how we might reform the system.
Has a "Summary Judgment" motion in an Ontario family court resulted in you losing your child to the Children's Aid? Are you now facing a summary judgment motion? The increasing frequency of using this draconian and patently unfair tool to deprive children of their parents in these sorts of child custody cases has long troubled me. It's gratifying to see that at least one Ontario Superior Court Judge seems to agree with me.