Court Cases & Orders

Lawyer-Less Father Misses Opportunities at Trial; Appeal Denied



Lawyer-Less Father Misses Opportunities at Trial;  Appeal Denied 

Recently we highlighted an Ontario decision  that illustrated how a litigant’s outcome in court can potentially be hampered by his or her decision not to have competent legal representation.

Although there are many, many examples of this, another recent case, this time from the Ontario Court of Appeal, shows that unrepresented litigants – who are generally unfamiliar with legal procedure – can unwittingly deprive themselves of the opportunity to assert their rights or put forward helpful evidence at the appropriate procedural juncture.

As usual, the parties were former spouses, who had decided to separate and divorce.   They went to court to resolve the legal issues arising from that decision, chief among them the question of who was to get custody of the three-year-old child they had together.

At trial, the mother was granted custody; the father, who was not represented by a lawyer, was given access that was to be supervised by the Salvation Army.  Moreover, the trial judge also imposed a five-year restraining order on him, blocking him from contacting or going near the mother, the child, and members of the mother’s extended family.

The trial judge had also refused to adjourn the proceedings to allow the father to properly prepare, produce documents, and obtain witnesses.   He was also not permitted to bring forth his treating psychiatrist to give evidence at trial.

The father – who was now represented by a lawyer – appealedall of these lower-court rulings to the Ontario Court of Appeal.

His appeal was dismissed.

The court found that the trial judge had carefully considered the parties’ respective submissions.   The father had a full 15 months prior to the trial date in order to prepare his materials and submissions.   He knew of the exact trial date two months before it took place.   Moreover, the matter concerned the best interests of the child, and it was important to keep the proceedings moving along.  The trial judge’s decision refusing to allow the father an adjournment in the circumstances was not in error.

With respect the treating psychiatrist’s evidence:  the father’s request to produce his doctor was made only after the trial had already begun, and he had not complied with the procedural requirements of the Family Law Rules that govern the calling of expert witnesses (including giving the mother a copy of the expert’s curriculum vitae, or a list of his or her qualifications).   Furthermore, the Appeal Court found that – even if the trial judge felt it appropriate to give the father some leeway in this regard – the doctor’s evidence would likely have made no difference in the orders that were ultimately imposed at trial.

As for the substantive ruling that gave the father supervised access only, with custody to the mother – the Court of Appeal found that the evidence in support of this outcome was “overwhelming” and that the trial judge’s decision on supervised access “was a wise one”.   The child had been in the mother’s custody since birth, had strong ties to her, and had virtually no emotional ties to the father at all.  Previous attempts at supervised access by the father had failed completely.  And while the court conceded that this might change in the future, it was the appropriate arrangement for the time being.

Finally, the Appeal Court saw no error in the 5-year restraining order.  There was clear and convincing evidence that the father had been violent to the mother and her family in the past.

The father’s appeal was ordered dismissed, with fixed costs of $10,000 being imposed on him.

For the full text of the decision, see:

French v. Riley-French, 2012 ONCA 702 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.