Case Conferences & Due Process: B. (A.) v. A. (N.L.) 2013 ONSC 2990

This is an appeal dealing with issues of procedural fairness and due process, the appropriate role of a case conference judge, and clarifies what orders can be appropriately made at a case conference.

Background

The parties were married for three years and had a child. A temporary custody agreement gave the mother custody and alternate weekend access to the father. Their disputes centered on custody, child support, claims of harassment and the other’s inability to parent. At the first case conference, they agreed to have the Office of the Children’s Lawyer provide a report to assist the judge in making a final custody determination at a second conference.

There were some issues with the final OCL report. Though it did provide a number of recommendations, the child was still under investigation for numerous health issues while the case conference was underway. It was also two months old by the time of the second conference.

Prior to the conference date, the father made two requests for the conference to be adjourned so that he could retain counsel. His requests were denied. Going into court, the parties had expected that the judge would provide guidance towards reaching a settlement.

In her brief for the conference, the mother included an offer to settle and a request for a final or temporary order to be made based on her submitted draft order to maintain the sole custody arrangement. The father sought shared custody and expressed his concerns about the OCL’s report.

Unexpectedly, the conference judge made final orders for child support decided to maintain the existing custody and access arrangement based on the mother’s submissions. He expressed blatant disapproval of the father’s lack of counsel and failure to take steps and deal with the two-month old report prior to the conference.

The father appealed, claiming that the conference judge erroneously refused his request for adjournment and had exceeded his authority to the extent that the father’s right to procedural fairness was denied.

Procedural Unfairness

Justice Czutrin, allowed the appeal after considering the context conference judge’s decision and the law regarding case conferences.

Case conference judges are limited under Rule 17(8) of the Family Law Rules as to what orders they can make. Under FLR Rule 17(8), final or temporary orders can only be made if it is appropriate in the circumstances and proper notice has been served to the parties.

The primary objective of the FLR is to enable courts to deal with cases justly, which includes ensuring that the procedure in a matter is fair to all parties. The rules are aimed at changing the adversarial culture underlying the legal system while simultaneously preparing parties for settlement or trial.

As no affidavits of evidence have been exchanged for the conference, there was no evidence before the judge that could support a final order. The only evidence he had was a final statement, some tax information, and the OCL report. An OCL report and its recommendations are not considered determinative of all relevant issues. Additionally, case conference briefs, are not evidence as they are not part of the continuing record. None of this evidence was substantive enough for the judge to dispose of the matter in conference, especially since the final order was opposed and not made on consent. The mother should have moved for summary judgment if she felt that the information raised no issues requiring trial, but she did not.

The parties had entered the conference expecting assistance, not a final order. During the conference, the father did not understand that a final decision would arise from the proceeding – he did not have the requisite notice. The notice requirement is absolutely necessary to procedural fairness as it ensures that all parties affected will have ‘a proper opportunity to be heard.’  Since the father was unaware that the case conference – so early on in the matter – could result in a final order and was not given the chance to property presents his response, he was not afforded proper due process.

Overall, the making of the final orders were riddled with errors of law and fact. They were completely unsupported by the evidence available at the time of the conference and utterly inappropriate and incorrect at law to the extent that they were procedurally unfair. Accordingly, the orders made in the conference were over turned.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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