PROCEDURAL FAIRNESS AND CASE CONFERENCES

Introduction: The procedures within family law litigation that lawyers and judges utilize can have a profound effect upon how litigants, particularly those who are self-represented, view the family law dispute resolution system.  Do lawyers and judges conduct cases in such a manner that the litigants perceive the highest standards of fairness and respect for a litigant’s procedural rights?

Good job on paper: At least on paper, we see ample evidence of expeditious dispute resolution and procedural fairness.  A unified family court can be found in many areas of Canada, many with supportive services of various degrees.  Ontario, for example, has adopted more simplified “plain English” rules in many family courts and effective July 1, 2004, these rules apply across the province in every court with family law jurisdiction.[1] Simplified and “plain English” family court rules are likely intended to afford to all meaningful access to “justice” in the widest sense of that word.  Gone are the Latin maxims and the misleading and confusing terms.  The Ontario rules are generally structured in an organized and very readable fashion. 

In Ontario, the Family Law Rules provide for an orderly, efficient and most of all procedurally fair mechanism for the litigants to address the real issues dividing them.  For example, prior to bringing most motions, one has to arrange a case conference[2] where the issues can be vetted informally with a judge.  Case conferences also serve wider purposes than precursors to motions.  A case conference is a useful tool to quickly focus on the issues (substantive and procedural) and move the entire matter forward in an organized and orderly fashion.  At the case conference, timetables can be arranged, the parties can explore settling all or some of the issues and, with judicial assistance, the parties can assess the strengths and weaknesses of any proposed motion.  The institutionalization of the case conference’s first cousin, the settlement conference, is a further welcome step to access judicial assistance and bring closure to a file on a consensual basis.[3]

Although mediative and alternative dispute resolution measures are built into and encouraged in these rules,[4] they have nonetheless maintained the adversary system model.  The trial is still the mode of last resort for reaching a final decision.  The motion is still the method of resolving interim (or as these rules state, “temporary”) issues.  The rules stipulate that substantive issues are still decided based on sworn affidavit evidence that may or may not be tested by cross-examination before a reporter.  There is a special procedure for straightforward procedural issues (as opposed to substantive issues); they may be resolved without actually being physically present in the courtroom.[5]

Balance between procedure and substance: In short, these rules do provide a rational balance between dealing with strictly procedural matters versus substantive matters.  There is a conceptual difference between the situation where judicious dispute resolution requires sworn evidence that can be subject to cross-examination or other analysis and involves the determination of key issues such as temporary custody and support, versus the situation where a judge is mandated to procedurally direct the case through such means as setting a timetable or requiring production of documents.  Fairness to the litigants requires, for example, that they know in advance that a case conference will not and indeed cannot legally alter their substantive rights.[6]  Fairness to litigants requires that substantive issues be vetted by a judge who reads the affidavits (and cross examination transcripts, if any), carefully considers the submissions of counsel (or the parties themselves where there is self-representation), and then comes to a decision that gives due recognition to the admissible evidence and the applicable law.

Processing a family law matter under any particular regime requires judicial sensitivity to the fact that we are affecting the rights and responsibilities of individuals who are generally in an extraordinary high degree of stress or outright emotional pain.  Under such circumstances, the court should be vigilant to afford procedural fairness in order to maximize the possibility that even a defeated litigant will perceive that the process itself was fair to all concerned.

One judge astutely recognized that the rules attempt to be procedurally fair by mandating adequate notice before adjudicating:[7]

The Family Law Rules, O. Reg. 114/99, provide a procedural code for processes in this court.  They are far from perfect but they attempt to be fair to all sides in disputes brought to the court.  One of the ways they try to do so is by requiring someone who wants relief from the court against another person to serve such other person with notice of what is being sought and by giving such person a reasonable time to respond.  This reasonable time to respond contemplates various things including consulting and retaining a lawyer, obtaining legal aid if necessary, preparing responding evidence and various other related matters that are not unusual in the circumstances.  The time allowed to do these things varies depending on the nature of the proceeding.

Can any judge therefore truly justify to himself or herself taking custody or access away from a parent absent adequate notice and admissible evidence?  Should a court make important decisions based solely upon unsworn case conference briefs and possibly exaggerated submissions of counsel?  Or, should the court require fair notice along with written and sworn evidence that complies with evidentiary standards stipulated by the rules and developed by the case law?  I would hope that that the answers should be obvious.  Regrettably, experience has taught many lawyers (including myself) that not all judges share in these views.

Importance of procedural fairness: I had commented previously on the importance of procedural fairness under the Family Law Rules.[8]  The opening and closing paragraphs of that article can apply equally to the subject of the judicious use of case conferences as discussed in this article:

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.

…

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)[9] 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.

Litigants and the public generally are observing how lawyers and judges process cases through the system.  When someone goes through the legal system (whether with counsel or even more crucially, as a self represented litigant), is there a perception that the system has treated the litigant fairly?  Did the litigant always receive fair notice of the issues that he or she was expected to address?  Did the litigant receive a meaningful opportunity to respond to the evidence and submissions of the other party?  As the lawyer for the appellant-wife in Farrar v. Farrar[10], I was pleased to have the Court of Appeal affirm that a Family Court trial judge should not have adopted procedures at the end of the case that essentially deprived the wife of a reasonable opportunity to challenge evidence that the trial judge herself asked the husband to bring forward after the close of evidence.  The Court of Appeal has made it clear that procedural fairness is a bulwark of the legal process.  Arguably, procedural fairness during the stages of the case that lead up to trial should be just as jealously guarded.

Role of the Case Conference: Ontario’s Family Law Rules are clear that a case conference is designed to deal only with procedural issues unless a substantive issue is addressed on consent.  The entire thrust of the rules makes it abundantly clear that such matters as identifying issues, securing disclosure, noting admissions, and scheduling the next steps are the sort of issues that are canvassed at these conferences.[11]

The only possible justification for making a substantive order at a case conference can be found in clause 17(8)(b) and then only where “notice has been served”.  If there was no notice, there can be no substantive order made unless it is on consent.  Rule 17 must surely be read in the light of the other rules, particularly the introductory rules that set the entire tone for this progressive scheme of dispute resolution. “The primary objective of these rules is to enable the court to deal with cases justly.”[12]  Subrule 2(5) [13] must have in mind the early procedural interventions that can be achieved at a case conference.  But nothing in subrule 2(5) would authorize a court to make substantive orders absent fair notice and admissible evidence.

Strictly, ‘fairness’ must mean giving proper, clear and unequivocal notice of any step in a case where a judge is going to make a decision affecting the substantive rights and responsibilities of the parties.  Where a judge compromises the principle of clear and timely notice, the notion of “fairness” is correspondingly eroded, sometimes even beyond the extent of that compromise.

The courts elsewhere have affirmed that denial of a right to a fair hearing may render a decision invalid.[14]  Expediency should not trump fairness.  No less of a standard ought to apply in the family courts across Canada.

In Ontario, there has been some judicial support for the views expressed here.  In one case,[15] the parties attended at what is colloquially termed a “first appearance”.  This procedure has no source in the Family Law Rules.  There was no motion before the court — just the signed but unsworn pleadings.  Justice Kiteley, sitting in appeal from the lower court’s temporary order, decided to treat this “first appearance” as if it were a case conference or settlement conference.  The appeal judge was fully aware of the fact that absolutely no notice was given and therefore the order that the judge made simply could not stand.  The appeal judge stated (my emphasis added):

… The Family Rules institutionalize conferences as vehicles for problem resolution.  They do not undermine or defeat the rules of natural justice.  Before any substantive order is made, a litigant is entitled to notice of the case she must meet, entitled to an opportunity to respond to that case and entitled to an opportunity to be heard.  This case was not fairly and fully heard when all of the elements of procedural fairness were not present.  The appellant received no notice that an important order such as this would be sought.  She knew from the application what case she would have to meet at trial, but she had no notice of what case she would have to meet as to the interim access.  Her counsel had an opportunity to make submissions which consisted largely of pointing out the factual differences in the material and resisting the making of an order without notice.  Those submissions do not constitute the right to be heard.

In another Ontario case[16], Justice Olah considered a motion for permission (or leave) to appeal a temporary (interim) order from another judge of the Family Court.  There had been two case conferences where substantive orders addressing access were made, both without any notice and any admissible evidence.  Justice Olah felt that it was unclear whether clause 17(8)(b) of the rules authorized a temporary substantive order and whether a substantive order could be made where no notice was served. Accordingly, she gave permission to appeal.

Improper use of case conference:  Some time ago, the father of a young child retained me as his lawyer.  The father had been self-represented before that time.  The parents had previously been able to resolve some of their differences and had followed a consent temporary order with respect to access.  The next step was to be the case conference.  At a previous motion, the judge had allocated a grand total of 18 minutes to the case conference. 

The father (who, at that time was still self-represented) had read the Family Law Rules and he was of average intelligence.  The mother’s case conference brief (that he received just before the conference) alleged some new problems with the exercise of access.  At the case conference the mother’s lawyer raised additional ‘facts’ and strongly pressed the judge to do something substantive to address the father’s alleged misbehaviour.  The father told the judge that he disputed what was in the brief and he disputed the new ‘facts’ advanced by the mother’s lawyer.  The mother’s lawyer had given no advance notice that she would be seeking a reduction in the father’s access.

The normal expectation in these circumstances would be that the judge would have granted permission to the mother to bring a motion based upon proper affidavit evidence in order for the court to determine whether access should be supervised or indeed even terminated.  The father would then have the right to file his own affidavit and witness affidavits, consider whether he should now hire a lawyer given the raised stakes, and consider cross-examining the wife on her disputed allegations, etc.  The case management judge could have set a strict timetable within which the parties would have been required to complete the various steps leading up to argument of the motion.

Instead, without giving the father any advance warning of what she was going to do, the judge summarily reduced access from at least two full days per week to not more than two hours per week at an access centre.  There was no sworn evidence.  There was no claim in the case conference brief itself for supervised access.  This unrepresented litigant could not comprehend what had happened.  A reading of the rules told him that access orders could be made at a motion or at a trial — not at a case conference (unless advance notice were given, which was not the case here).  Nothing in the rules would have alerted him to the jeopardy that he was facing at this case conference — the impairment of the father-and-child relationship without warning, without admissible evidence and without any chance to answer the serious allegations.

When this fellow first contacted me and related the above story, I remonstrated with him that he must be mistaken, that there simply must have been a motion before the court as well.  A review of the court file confirmed the facts: there had been no advance notice of any kind and no sworn evidence.  A motion to seek permission to appeal was immediately launched, heard fairly expeditiously, and promptly but summarily dismissed. 

Newfoundland Court of Appeal addresses the issue: Recently, the Court of Appeal for Newfoundland and Labrador firmly espoused the principle of proper notice in the family law case management system.[17]  In Chafe v. Henley, it was the mother this time who was dealt with most unfairly.  A fifteen-year-old daughter was refusing to visit with her father.  The father filed an application for joint custody in June 2003 and the case came up for the required case conference (in Newfoundland it is called a “case management meeting”) in August.  There was a free wheeling discussion with respect to the best means by which to have this 15-year-old visit her father.  The mother’s counsel made her position quite clear that there should be no access until counselling took place.  The judge nonetheless ordered counselling with simultaneous access to the father according to a definite schedule that ultimately would lead to “joint and equal physical custody” come October.

It would appear that there was no notice of motion and there were no affidavits exchanged.  This order appeared to be based only upon the pleadings and the submissions of counsel.  The purposes of the case management meeting under the Newfoundland rules echoes those of Ontario.[18]

The Newfoundland Court of Appeal correctly analyzed the structure of the rules and concluded that a non-consensual substantive order could not be made at a case management meeting.  Roberts J.A. wrote (my emphasis added):[19]

Rule 56A.21(2) sets out what is to happen at a case management meeting. The intent of the Rule, in general terms, is to narrow issues, explore possibilities of settlement and schedule the next step in the proceedings: …  The powers given to the presiding judge by Rule 56A.21(3) reinforce that intent. The judge is empowered to make a number of interlocutory type orders covering such things as document disclosure, appraisal of property, home assessments and psychiatric and/or psychological assessments. The judge cannot, however, at a case management meeting make an order disposing of the litigation which is the subject of the proceeding, even on an interim basis, unless the parties consent. That, it seems to me, is clear from a reading of Rule 56A.21 as a whole and the exceptions created by Rule 56A.21(3) (j) and (k).

Rule 56A.21(3)(j) and (k) allow for orders, including a final order, providing consent is given. The residual power given by Rule 56A.21(3)(q) permitting "an order that will promote a fair and expeditious resolution of the case" cannot, by definition, order an end to the dispute between the parties, or any part of it, either on an interim or final basis. If the dispute were to be disposed of there would be nothing left to promote. Rule 56A.23(2) which provides that the case management judge "shall determine whether the parties are ready for a trial or a hearing and the Court may make an order described in Rule 56.21A(3)" reinforces this conclusion.

When one compares the Newfoundland rules to the Ontario rules, one sees that there is no substantive difference between the two.  Both provinces give to the case management judge broad procedural powers to assist the parties to cut costs, speed up the judicial process, make full disclosure, consider alternative means to resolve their differences, etc.  Neither province’s rules authorize a judge at a case conference to make a substantive order unless proper notice has been given (presumably with supporting affidavit evidence as well) or unless the order is on consent of the parties.  The entire thrust in both provinces is to prevent the case from getting bogged down procedurally and to direct the parties themselves to focus on those issues that are truly in dispute.  At the case conference, the judge in both provinces fulfills a more mediative type of role, albeit garnished with the power to ultimately make decisive orders — but only with respect to the procedures that the parties themselves will employ to achieve an ultimate resolution of their issues.

Conclusions: A case conference is not a motion and to merge the concepts would be productive of mischief to the litigants and to the justice system.  The rules strike a fine balance between the judge’s procedural powers and substantive powers.  Just as an Ontario judge cannot dictate a final result at a settlement conference[20], so too does a judge act outside of his or her mandated powers by making a substantive order at a case conference.[21]

Ensuring differentiation in proper judicial roles is not a matter of form over substance.  Rather, it is a matter of abiding by rules that have been carefully crafted by lawyers and judges who served on the rules committee.  The rules are not simply advisory.  The rules have the force of law.  The rules are there to protect the rights of the litigants.  The rules are there to ensure fair procedures and fair dealing for all.

What are the effects when lawyers and judges ignore the rules?

1.      The system descends into anarchy. 

2.      Litigants (and particularly those who represent themselves) receive the impression that their issues will not be given fair and even-handed consideration. 

3.      Disrespect for the entire legal system is promoted.

4.      Judges and lawyers, who are obliged to faithfully facilitate a regime of orderly dispute resolution, do a disservice to the litigants.

Judges and lawyers should conduct cases in a procedurally fair manner and therefore ensure that each litigant perceives that his or her concerns are even-handedly addressed.  In that manner, judges and lawyers promote respect for the system, they increase the chances that even the ‘losing’ litigant has some degree of satisfaction with the process, and they professionally preserve the integrity of the system overall.