May 13th, 2022
The area and practice of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FamilyMatters is the Lerners Family Law Group's weekly update on how that change is being made:
The court system is designed to achieve fair and just judgments, and this principle must be upheld. Family disputes need to be resolved through the court's timely adjudication, without excessive legal fees or delay. The courts have limited time and resources, and lengthy trials are simply not appropriate or realistic for every dispute.
Not every family law litigant has the means to proceed through the process of obtaining time for a trial, let alone the expenses of a protracted trial, private dispute resolution mechanisms like mediation, arbitration or collaborative family law. A full and complete trial does not always result in a "just" outcome. The emotional and financial drain of participating in a lengthy trial needs to be re-considered in terms of access to justice. Consideration should be given to other methods to ensure a matter is fully heard with all evidence before the court. Furthermore, not every family law litigant is able to afford a traditional and often lengthy trial of all issues.
There needs to be a culture shift to consider alternatives within the court system that are better suited to the parties. Family Court should provide other options for a fair and just outcome.
What is a "focused hearing"?
Focused hearings are not explicitly provided for by Ontario Family Law Rules, and have been described by the court as "an invention of the judiciary as an attempt to streamline the litigation process and to circumvent voluminous volumes of evidentiary filings and the necessity of dealing with multiple issues at a lengthy trial" (Children's Aid Society of Algoma v. L.M., 2021 ONCJ 679).
✽ Rule 2, the court has a "Primary Objective" to deal with cases justly and to ensure that the procedure is fair to all parties. Time and expense is to be saved: the case is to be dealt with in ways appropriate to its importance and complexity given the court resources available. Parties and their lawyers are required to help the court to promote the Primary Objective by managing cases at an early stage and identifying the issues that do not need full investigation, and trial can be dismissed.
✽ Subrule 1(7.2) of the Ontario Family Law Rules allows the court to make procedural orders giving such directions or imposing such conditions that are just, including an order that parties exchange affidavits listing all documents that are relevant to the issues in a case, and that are in a party's control or available upon request. The court can order that a party make other disclosure within a specific time period. This rule also allows other "trial management" orders pertaining to the presentation of evidence at a trial and that a trial be limited to a specified number of days and apportioning the time between the parties.
✽ Subrule 17(6) of the Ontario Family Law Rules sets out the purposes of a trial management conference, including the use of affidavit evidence and an agreed statement of facts, as well as scheduling the trial date. Generally, a full trial will be on a "rolling trial list" without a set date; however, this varies between jurisdictions. The focused hearing will be scheduled on a set date for a certain amount of time and will not be placed on a list that is subject to being "bumped" to another list with no fixed date.
Why should we have focused hearings?
A focused hearing is designed to save time and expenses while maintaining the objective of a fair and just disposition of the case. The parties and lawyers do not need to wait until the trial management conference to raise the possibility of using a focused hearing: a motion may be brought earlier in the proceeding (or at a conference) when it is evident that such a hearing would be appropriate for all or some issues in the matter.
As it is ordered by a judge, the judge will determine how the evidence will be presented and the time needed to allow it to be presented. The judge will also place time limits on how long each party, and their witnesses, will give oral evidence and on how long any person may be cross-examined. Timetables are to be established to control the progress of the case, and consideration of the benefits versus the cost of steps is necessary. A judge will very likely give strict page limits on affidavits and documents (or "exhibits") that may be presented at the focused hearing. The adjudication of the focused hearing will be a final order; therefore, the hearing is a trial with a modified and strict procedure for all evidence to be presented.
Even before the pandemic, the parties and their lawyers were encouraged by the Ontario Family Law Rules to use written documents, or hold a telephone or video conference, if appropriate. It is my opinion that many court proceedings warrant a judicial consideration of whether to conduct a "focused hearing" for all issues, or some issues.
When can focused hearings be used?
A focused hearing will be appropriate in many circumstances.
✽ A "motion to change" proceeding is a variation of a previous order or agreement, and a full trial has usually previously been held. In certain cases (especially those with narrow issues), a further trial may only cause aggravation of the division between parties, as grievances are aired, and attempts are made to revamp the entire final order through a new trial.
✽ If there are only a few outstanding issues in a proceeding where the bulk of the issues have been resolved through settlement, then a focused hearing should be considered.
✽ A focused hearing is also appropriate for early issues (such as the date of cohabitation or separation), particularly when these determination(s) will increase the chance of settling more complex issues of spousal support and division of property.
✽ If a party or parties are self-represented, the details of a focused hearing may be far more manageable than a full trial. Oral or "viva voce" evidence will be available, and the hearing will not escalate out of control. The result will still be fair and just, with judicial control over the process.
✽ Where there is a significant discrepancy between parties with respect to the ability to afford a full, and possibly protracted, trial, focused hearings should be considered. A focused hearing gives strict parameters and time constraints, limiting legal fees. Limits should be placed on the parties through a focused hearing with respect to evidence by affidavit, particularly evidence-in-chief, and narrow time limits for cross-examination to focus on the current issues.
✽ Focused hearings may be useful in child protection matters if the issue to be determined is narrow and not complex. In general, focused hearings of family matters will free up more time for complex and urgent child protection trials, such as Crown wardship trials, that require significant court time and resources.
✽ There is a variety of case law available to support the use of focused trials in family matters, such as:
- In Clark v. Moxley, 2017 ONSC 4971, the parties attended a three-day focused hearing to decide the issues of school and interim parenting for the parties' 12-year-old son. The parties and the clinician for the Office of the Children's Lawyer provided affidavit evidence, 30-minute evidence in-chief, and were subject to cross-examination. Other evidence would be submitted by way of affidavit, and parties were allowed to cross-examine affiants. Upon reviewing the evidence and considering the son's best interests, the court decided that the parenting schedule remain unchanged (save one additional afterschool access) and determined which high school the son would attend.
- In Odorico v. Odorico, 2021 ONSC 7290, the parties attended a focused hearing on the issue of the validity of their marriage contract, which was signed one day before their wedding. The Respondent Wife sought to set aside the marriage contract on several grounds, including duress, unconscionability, lack of independent legal advice, and financial disclosure. The parties exchanged affidavits, gave evidence-in-chief, were cross-examined, and had counsel make submissions at a two-day focused hearing. The court also received evidence from the lawyer who prepared the contract. Based on the evidence, the court concluded that the marriage contract was valid and that the parties intended to allow the Applicant Husband to preserve the assets he had entering the marriage in the event of separation. The Respondent Wife's application to set aside the marriage contract was dismissed.
This article must conclude with a decision regarding summary judgment, which is a different procedure where there is no genuine issue for trial (motions for summary judgments are also an important method for efficient court hearings). The Supreme Court of Canada in Hyrnyniak v. Maudlin 2014 SCC 7 includes the following statements that are also applicable to focused hearings:
- The process of adjudication must be fair and just;
- Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes; and
- If the process is disproportionate to the nature of the dispute and the interests involved, then a fair and just result will not be achieved.
In my respectful opinion, there needs to be a shift in the mindset of litigants, lawyers, and judges away from a conventional trial taking place in every case. The pandemic backlog of disputes emphasizes the need to continue to adapt to achieve access to justice. The most painstaking and protracted trials do not always produce the best outcome for parties. There needs to be consideration of alternative approaches away from lengthy trials that often spiral out of control. Focused hearings are structured trials with strict parameters for affidavit and oral evidence, and such hearings are an improved method of achieving a fair and just result of many disputes. Lawyers should encourage consideration of focused hearings, and should raise the possible method for judicial consideration to achieve final orders whenever suitable. This is reflective of capable, open-minded, and adaptive representation and proportionality that our family clients deserve.
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