PROCEDURAL FAIRNESS – PRESSURE MOUNTING TO ABOLISH TRIALS
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 to families in the child welfare system, as I have commented previously. In addition, I have already warned of the emerging trend of denying litigants generally their day in court.
Two recent cases bring these points home. In C.A.S. of Hamilton v. R.(K.), Justice John Harper expresses a common theme in child welfare cases:
Permeating through the Child and Family Services Act is the underlying theme of the need for child time sensitivity when considering the protection, safety, and well-being of children. Child development cannot wait for a parent to deal with multiple issues of parental and personal dysfunction when there are no indicators in the evidence that a parent can deal with those issues. … The mother’s recent plan is vague and uncertain. I find that there are no details or evidence that gives me any degree of comfort that the child’s needs can be met. The risks of harm cannot be reduced from their high level within any reasonable period of time.
The Saskatchewan case of Pippin v. Pippin was a motion to terminate spousal support. Here the judge applied the Combined Air case, a commercial decision that tells us that trials are not always necessary to achieve justice. The judge wrote:
Where the court is able to decide a matter without making evidentiary findings based on controverted facts, then it is in the interest of parties with limited means to make the determination without further delay and increased costs.
Thus the judge declined the former wife’s request to have a trial; the judge decided the case on a final basis by examining the conflicting affidavits.
I have previously commented on the potential dangers of Combined Air to procedural fairness. In other words, based on the written word alone a parent can be denied his ‘day in court’. Those parents who are not able to express themselves well in English (and it follows that such parents do not have legal representation either) are at a distinct disadvantage.
We cannot emphasize strongly enough how crucial it is for a parent to plead his case cogently and persuasively at the outset of the case. Preparing a pleading whether in a Children’s Aid case or a general family law case is not just a matter of checking off boxes and then arguing with each and every allegation made in the order that the C.A.S. or other applicant made the allegations. Rather, you need to tell to tell your story in an organized fashion. You need legal advice to find out what parts of the Application truly require a detailed response and what parts will suffice with a simple denial.
It is worth the investment of time and money to hire a lawyer on even a limited retainer basis so that your case starts on the right foot with procedural fairness. With a strategy laid out, you hopefully reduce the chances of being on the losing end of a summary judgment motion.
The trend developing in family law is to short-circuit the trial route. Self-repped litigants (and those with lawyers as well) must plan for this at the outset and learn how to strategically present their cases. It looks as if trials might eventually become a relic of legal history. Planning for a trial versus planning to prevent a summary judgment judicial death sentence requires different skill sets.
