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Beaver v. Hill: The Role of Counsel and the Judiciary is Front and Centre

Beaver v. Hill is a fascinating ongoing legal saga that bears close scrutiny. At this point the role of counsel and the judiciary is front and centre.

In the most recent decision released on November 29, 2018 (2018 ONSC 7138), the Honourable Justice Alex Pazaratz in his role as judicial case manager of the file had plenty to say regarding the role and tactics of counsel.  He opened his reasons with the following:

[78]      This case has developed into a procedural morass, to which both sides have contributed. A phalanx of lawyers appeared before us. The parties have made no effort to save expense or time as required by ss. 2(3) of the Family Law Rules: Titova v. Titov,2012 ONCA 864 (CanLII), 299 O.A.C. 215, at para. 54. Their tactics have led to a proliferation of materials, skirmishes and arguments that the Rules seek to avoid. This must not be permitted to continue.

[79]     The case going forward requires active and determined case management, with a view, in particular, to avoiding the sort of free-ranging general inquiry Binnie J. deplored in Lax Kw’alaams Indian Band. We were told that this matter is now being case-managed. It will fall to the case management judge, in the first instance, to ensure that this objective is met.

1.    That was the Ontario Court of Appeal talking about thiscase – these parties; these lawyers – as recently as October 12, 2018.   2018 ONCA 816 (CanLII)

The matter before Justice Pazaratz on November 27, 2018 was a procedural motion by the Respondent to have a Justice who had presided on earlier events in the proceeding recused from hearing any further matters. Notably he was not scheduled to hear any matters and because he was a prior conference judge the Family Law Rules precluded him from being scheduled to hear any contested matter between these parties in any event.

It would seem to be an unnecessary motion. At least it seemed unnecessary to Justice Pazaratz and the Applicant.

Nevertheless four lawyers appeared on the motion on behalf of the Applicant and eight lawyers appeared on behalf of the Respondent.

Perhaps the use of the term “phalanx of lawyers” by the Court of Appeal was not seen as a negative by counsel or the parties. Meriam-Webster.com defines phalanx as follows:

1. a body of heavily armed infantry in ancient Greece formed in close deep ranks;

2. a body of troops in close array;

3. a massed arrangement of persons, animals, or things,  phalanx of armed guards

4. an organized body of persons,  phalanx of lawyers.

The case itself is typical on its face. The parties are the unmarried parents of one child. There are parenting issues as well as child support and spousal support to be determined.

Justice Pazaratz references the Court of Appeal to summarize what makes the case unique:

19. The pivotal issue in this case was summarized in the aforementioned Court of Appeal judgment:

[4]  In December 2015, Ms. Beaver brought an application for B.’s custody under the CLRA and child and spousal support under the FLA. Mr. Hill filed an answer and defence in the usual form in February 2016. However, in March 2016, he filed a notice of constitutional question challenging the jurisdiction of the Superior Court, as well as the applicability of the CLRA and FLA, on the basis that he had an Aboriginal and treaty right, protected by s. 35 of the Constitution Act, 1982, to have his family law disputes resolved pursuant to Haudenosaunee law. He claimed what might be characterized as a constitutional exemption from the application of Ontario family law and the jurisdiction of the Superior Court to determine the parties’ dispute. Mr. Hill also gave notice of his constitutional claim to the Chief of the Six Nations and to the Haudenosaunee Confederacy Council but neither has taken steps to intervene or participate.

Mr. Hill is a tax exempt high income earner. The application of the provincial child support guidelines and the consideration of the Spousal Support Advisory Guidelines have a significant impact on his income for child and spousal support purposes. The application of provincial law to Mr. Hill is an issue that may well end up before the Supreme Court of Canada.  But twelve lawyers for an unnecessary procedural motion ?   Justice Pazaratz was not impressed to say the least:

29. The bottom line is that this court has an obligation to be sensible, even if the parties and lawyers aren’t.

30. Courts exist to resolve real disputes between parties.  Not to provide opinions in response to hypothetical or academic problems.  And certainly not to encourage or facilitate convoluted litigation strategies.

31. If the reality is that Justice Sloan would not be assigned to future events on this file anyway, then a motion seeking his recusal is not only premature – it’s pointless and purely hypothetical.

32. The court has a common law or inherent jurisdiction to quash or dismiss a motion that is an abuse of process or improperly brought.

33. Beyond that, the underlying principles of the Family Law Rulesand the objectives of case management emphasize the need to save time and expense and ensure a fair procedure to all parties.

34. Apparently no one was listening when the Court of Appeal went out of its way to remind these parties about Rule 2:

2(2) Primary Objective
The primary objective of these rules is to enable the court to deal with cases justly. 

2(3) Dealing with Cases Justly
Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

2(4) Duty to Promote Primary Objective
The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

2(5) Duty to Manage Cases
The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

35. I find that allowing the Respondent to proceed at this time with a motion about a non-issue would be inconsistent with many important components of Rule 2:

a. It would be inconsistent with the primary objective.

b. It would waste time and money (including substantial cost to the taxpayer whenever judges spend time dealing with matters that shouldn’t be in court).

c. The recusal motion would require one full day to be heard.  Our overburdened court system can’t – and shouldn’t – waste scarce resources on a needless motion, to the detriment of other families who desperately need court time to decide real issues.

36. Some motions are merely misguided.  Anyone can make a mistake.

37. But this motion needs to be viewed in context.

38. As the Court of Appeal noted, the Respondent “can easily afford” this litigation.  The Applicant cannot.

39. When you give a team of very talented and expensive lawyers a blank cheque to dredge up every conceivable argument and motion you can think of, this is what happens.

40. It’s not just financially wasteful.

41. It’s gamesmanship which precludes honest settlement discussion.

42. Whether you call it oppression or a war of attrition – it’s basically one side trying to avoid the real issues, by creating as many legal hurdles as possible.

43. That’s the real perception the Respondent should worry about.

44. I suggested to the Respondent’s counsel that this motion could simply be adjourned indefinitely, returnable only if there is any suggestion that Justice Sloan will be assigned to this file in the future.

a. The Respondent’s counsel did not dispute that as the case management judge, I have the authority to control the court process, and to “separate and dispose of those issues that do not need full investigation and trial.” (Rule 2(5)(a)).

 b. However, the Respondent’s counsel insisted that I don’t have the jurisdiction to delay their motion indefinitely.

c. They requested that I make a decision:  Schedule the motion to be heard by Justice Sloan, or dismiss the motion.

45. My order:

a. The Respondent’s motion seeking an order that Justice Sloan be recused from presiding over any further matters in this proceeding is dismissed, without prejudice to the motion being returned in the event that Justice Sloan is assigned to a future event on this file.

b. If counsel wish to address any other issue (including costs), they may do so when this matter returns before me for a continuation of a Settlement Conference on January 16, 2019 at 10:00 a.m.

Settlement of this case should not be difficult.  But will the legal saga continue nevertheless ?

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