Case Conference Judge Blindsides Unprepared Husband – Order Set Aside
Should a final order made by a judge at a Case Conference hearing be binding, even though least one of the parties wasn’t prepared for the hearing, and made no submissions?
That was the question in a case called A.B. v. N.L.A., where the parents agreed to participate in a Case Conference hearing in order to resolve a dispute involving a temporary separation agreement that dealt with the custody of their child, child support, the right to travel with the child, and some other matters. The agreement had been prepared by the mother’s lawyer, but signed by both of them.
Although the parents each prepared Case Conference Briefs setting out their positions, when the father arrived at the Conference hearing he advised the judge he expected that it was merely an opportunity to negotiate. He did not come prepared to make submissions on any final order, and did not bring his lawyer with him. He twice asked the judge for an adjournment so that he could consult counsel, but his request was refused.
Instead, the judge at Case Conference hearing proceeded anyway, and made an 8-page final order. The order was not consented to by the parties, and in fact was made over the father’s objections.
The judge hearing the father’s later appeal admitted being “rather surprised” that the Case Conference judge had gone straight to considering the substantive issues between the parties, and had made a final binding order in these circumstances. For one thing, it was clear that neither of the parents expected a final order would be made at this stage. The contents of their respective Case Conference Briefs each revealed only the expectation that the judge would express his views and make recommendations at this stage.
But more importantly, the order ran afoul of legislated purpose of a Case Conference, which under the Family Law Rules expressly includes exploring the chances of settlement, finding ways to resolve the issues, and ideally making orders on consent. Such hearings are not meant to be adversarial in nature; rather they are intended to either get the parties to settle, or get them ready for trial. The judge’s refusal of the request for an adjournment was also troubling in light of the fact that the father was clearly not expecting the type of definitive hearing that was taking place.
It was true that, technically speaking, the Case Conference judge was entitled to make the final order he did However, in all the circumstances – and having regard to the principles of natural justice which include consideration of the availability of evidence, and the parties’ expectations, preparedness, and right to make submissions – the order had to be set aside. The matter was referred back to the Court for the next steps.
For the full text of the decision, see:
A.B. v. N.L.A., 2013 ONSC 2990 (CanLII) URL: http://canlii.ca/t/fzclx
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