Judges seizing themselves of a case and Functus Officio

G. (D.) v. F. (A.), 2015 ONCA 290

This appeal considers whether a judge can indefinitely seize themselves of a case and the doctrine of functus officio.


In this high-conflict custody and access case, the Appellant mother sought to reverse the trial judge’s decision awarding custody to the Respondent father and supervised access to her.  She refused to accept the trial outcome and sought custody of the children.  The trial judge seized himself of the matter and later transferred from the region.  The motions judge then seized herself of the matter after completing the tasks left to her by the trial judge.

In her decision under appeal, the motions judge observed the mother’s consistent unwillingness to comply with the trial ordered custody and access conditions of finding an access supervisor.

The mother had two main claims on appeal.  First, the motions judge had improperly seized herself of the matter, and in doing so, has effectively placed herself in a position of conflict where any motions to change inevitably result in the motions judge reviewing her own decisions.  This blog will deal with this issue of the appeal.

Second, pursuant to the Supreme Court of Canada’s decision in Doucet-Boudreau v Nova Scotia, the motions judge was functus officio and lacked jurisdiction over the matter once she completed the tasks left by trial judge.  This argument was rejected by the court.


Did the motions judge improperly seize herself of the matter?

The Court rejected this ground of appeal as it appeared that the mother was seeking to “escape the motion judge’s influence.”

An underlying philosophy of the Family Law Rules (Rules) is active case management, which includes early identification of issues and controlling the process of the case.  Rule 39(9) sets out the functions of case management judges, who must supervise a case’s progress, conduct conferences, and hear motions.  This rule is considered the gold standard of case management and only applies to Unified Family Court jurisdictions.  Rule 41, which does not explicitly list the functions of a case management judge, applied here because the matter was not decided in at a Unified Family Court.

Regardless of the differences between these rules, nothing in the Rules precluded the motions judge from using her inherent jurisdiction and active case management obligations to seize herself of the case.  This was the ‘best means of promoting the objectives of the rules and ensuring that cases are dealt with justly as required by Rule 2(3).’

Quoting Justice Gordon in Norman v Connors, the Court noted that, particularly in high-conflict cases, courts must step in and impose case management by relying on the general provisions of the Rules and their inherent jurisdiction.

This approach to case management permits reasonably quick access to justice with a judge familiar with the relevant facts and parties.  Furthermore, it is proportionate within Rule 2(3) as it alleviates the otherwise rapid over consumption of judicial resources when high-conflict cases frequently resort to court.

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.

Leave a Reply

Your email address will not be published. Required fields are marked *