Court Cases & Orders

Appeal Court Refuses to “Micromanage a Trial in Retrospect”

Written by Russell Alexander / (905) 655-6335

Appeal Court Refuses to “Micromanage a Trial in Retrospect”

Family litigants, especially self-represented ones, are often unclear on the role that the various courts play in hearing their matters.  One of the biggest misapprehensions appears to be this: That each level of court is essentially a new chance to re-tread old ground – and that litigants who do not happen to like the trial outcome can get a fresh slate and a chance for a “do-over” on appeal.

But this is completely untrue.   In a just-released ruling, the Ontario Court of Appeal clarifies that its role is very limited, and that appellants cannot simply show up expecting a second shot at their case.

In Kahsai v. Hagos the husband challenged the trial judge’s prior order requiring him to pay spousal and child support to the wife.   He took a scattershot approach to the grounds for appeal:  He objected to the judge’s management of the trial, her analysis of the legal issues, and her conclusions around his credibility. He claimed the trial was unfair overall, and favoured the wife.

Among other things, the husband complained that the trial judge had made several adverse findings him.  She found he had greatly understated the earnings of the corporation he ran, had not been forthcoming about the finances, and had used the company as his “personal bank account, withdrawing funds when needed”.  She also concluded he was “motivated by a wish to avoid a support obligation to [the wife]”.

The judge also made several unflattering observations about the husband’s approach to the entire proceedings:

Throughout [the husband’s] testimony, he took credit for all of the family’s successes and blamed [the wife] for all of its challenges…

In his evidence, [the husband] was motivated to present himself as a saviour, while [the wife] was the villain. [The husband] was consistent in attacking [the wife’s] character from every possible angle. In [the husband’s] view, [the wife] was stupid, uneducated, financially irresponsible, promiscuous, had a poor reputation, had no friends, did not contribute anything to the family, was a parasite, and was a bad and neglectful parent.

But in the Appeal Court’s view, none of the husband’s aspersions against the wife were accurate.   When viewed with an objective lens, the evidence showed she was a responsible individual with a steady job, who plainly contributed to the financial and practical aspects of keeping a home and raising a child.

The trial had also been procedurally fair; for example the trial judge had actually allowed it to stretch well beyond the estimated time slot.  She was also patient with parties and both their lawyers, making balanced and “modest” efforts to rein them in when needed.

Nor was there any no basis for any of the husband’s complaints about the judge’s overall management of the trial, with the Appeal Court declaring:

The [husband’s] claim that the trial judge’s management of the trial was unfair and favoured the [wife] does not bear up under scrutiny. The management of a trial is confided to the trial judge; it is not this court’s function to micromanage a trial in retrospect.

In the end the Appeal Court dismissed the husband’s appeal, adding “It is not this court’s role to retry a case.”

For the full text of the decision, see:

Kahsai v. Hagos, 2022 ONCA 576 

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About the author

Russell Alexander

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