Court Cases & Orders

Must a Judge Actually Read the Materials That Family Litigants File?

Written by Russell Alexander / (905) 655-6335

In a recent Court of Appeal decision, the court entertained a novel little question:

Does the fact that a motion court judge admitted to not having read the materials filed by the parties automatically mean his or her judgment on their matter should be overturned?

The background facts in Kelly v. Findlay were uncomplicated:  The unmarried parents of a 20-year old daughter, who never lived together and never married, were in court before a judge on a motion to deal with child support and the payment of extraordinary expenses, most notably relating to the daughter’s horseback riding activities.

Apparently, during the course of hearing the motion on those issues, the judge stated (in her own words) that she had “not had an opportunity to review the materials in any detail.”    However, she went on to make a substantive ruling on the various issues the parties had raised.

Afterwards, the father brought an appeal on the basis that the motion judge’s admitted failure to read the materials prior to the hearing brings the administration of justice into disrepute.

However – and perhaps surprisingly – the Appeal Court rejected this ground of appeal.

Clearly, the motion judge overtly admitted to not having read the file in detail, stating that she only received it the morning of the hearing.   But this was not fatal in the circumstances.  The Court of Appeal observed:

However, it is also clear that the Motions Judge took the opportunity to both listen to the arguments made by the parties and to consider the materials that were before her.  She also provided the parties with a detailed endorsement, outlining both her decision and the reasons for that decision.

A judge who acknowledges that she has not had an opportunity to read all the materials does not bring the administration of justice into disrepute.  There is no merit to this argument and I reject it.

For the full text of the decision, see:

Kelly v. Findlay

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.