• by Christina Hinds
Originally published in the OFLM 2024-03 edition
Overview
Trial is a significant step in a family court proceeding and therefore there are many reasons that a party may wish for their upcoming trial to be adjourned. One such reason might be to retain counsel, as was the case in Angle v. Angle (2024 ONSC 622). In Angle, Justice Pazaratz granted the adjournment, but a much shorter adjournment than the party had requested. Angle reminds us that in these situations, the court needs to balance the need for matters to be dealt with quickly and efficiently (especially matters involving children) and the need for both parties to have a fair opportunity to advance their positions.
The relocation request
In Angle v. Angle, the most contentious issue to be determined at trial was the Respondent mother’s request to relocate with the parties’ four-year-old child to Ireland. The mother originally proposed the issue of relocation in time for the child to start school in Ireland in September 2023. Unfortunately, the litigation was significantly delayed, and the matter did not reach trial before the child started school.
After five previous trial management conferences, a final trial management conference was held in November 2023 and the matter was set down for a 10-day trial in March 2024. At that time, both parties were represented by counsel. A few weeks later, the father’s lawyer brought a motion to be removed from the record. That motion was heard by Justice Pazaratz on January 2, 2024 and the father’s lawyer was removed from the record.
On January 24, 2024, the father brought a motion seeking an adjournment of the trial to October 2024. With the child set to start full-time school in September 2024, the mother argued that the trial needed to be heard and a decision rendered prior to September 2024. Justice Pazaratz agreed with the mother and referred to the child starting full-time school as a “real and immovable deadline” (at para. 22). The adjournment proposed by the father would result in the trial being heard after this deadline.
The father argued that he was actively seeking to retain new counsel and that he needed a reasonable opportunity to retain experienced counsel given the issues at stake. The mother argued that despite her continued efforts to move the matter forward, the litigation had been delayed. She also argued that since the father was a civil lawyer, his legal training would equip him to represent himself.
Legal principles regarding adjournments
In deciding whether to grant an adjournment, the court must consider the primary objective of the Family Law Rules, that being to deal with cases justly (at para. 14).
At paragraph 15, Justice Pazaratz reviewed the law with respect to adjournments (citing Lakhtakia v Mehra, 2022 ONSC 201):
In Konstan et al. v. Berkovits et al., 2021 ONSC 6749, at paras. 14-15, Diamond J. set out the legal test that a trial judge must apply when faced with an adjournment request. Although Konstan was a civil case and not a family law decision, I find that the same test applies:
[14] All parties agree that a judge's decision to adjourn or not adjourn a trial is highly discretionary. In Ariston Realty Corp. v Elcarim Inc. 2007 CanLII 13360(ONSC), Justice Perell set out a helpful list of factors and principles for the Court to consider when exercising its discretion to grant or refuse an adjournment:
"Depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge or master may need to weigh many relevant factors including:
• the overall objective of a determination of the matter on its substantive merits;
• the principles of natural justice;
• that justice not only be done but appear to be done;
• the particular circumstances of the request for an adjournment and the reasons and justification for the request;
• the practical effect or consequences of an adjournment on both substantive and procedural justice;
• the competing interests of the parties in advancing or delaying the progress of the litigation;
• the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;
• whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
• the need of the administration of justice to orderly process civil proceedings; and
• the need of the administration of justice to effectively enforce court orders…
While a self-represented party is not entitled to a “pass”, the fact that a party is self-represented is a relevant factor. At paragraph 16 (citing Justice Epstein in Toronto-Dominion Bank v. Hylton, [2010] O.J. No. 4725), Justice Pazaratz stated:
Once again, the fact that a party is self-represented is a relevant factor. That is not to say that a self-represented party is entitled to a "pass". However, as part of the court's obligation to ensure that all litigants have a fair opportunity to advance their positions, the court must assist self-represented parties so they can present their cases to the best of their abilities.
Justice Pazaratz’s balancing act
Justice Pazaratz acknowledged the significant delay in the matter reaching trial. The child, four years old at the time of the motion, was two years old when the parties separated – “more than half of his life has been uncertain while his parents fight about everything” (at para. 18).
Citing Rigillo v. Rigillo, 2019 ONCA 647, Pazaratz J. stated that “[d]elay in family proceedings is antithetical to the best interests of the children who require finality and peace”.
On the other hand, His Honour agreed that the father was entitled to legal representation and stated that “[t]he fact that he is a lawyer does not dimmish his entitlement to proper legal representation”.
While he mother’s frustration with respect to the delay and concerns about procedural fairness were more than justified, Justice Pazaratz found that it was reasonable for the father to want to retain experienced counsel, stating “what could be more important than permanent relocation of a child, out of Canada?” (at para. 21).
Justice Pazaratz found that the question of relocation had been long-delayed and that a decision needed to be made before the child starts full-time school in September 2024 – referring to this as an “immovable deadline”.
At paragraph 22, the Court considered the following:
- The father was largely responsible for the previous delay.
- Family law matters should be dealt with quickly and efficiently, especially in matters involving children.
- The court must consider the potential and comparative prejudice to each party.
- Adjourning the trial to October 2024 as requested by the father would create a significant strategic advantage for the father and corresponding disadvantage to the mother. It would also prejudice the child by pre-empting the court’s ability to consider an arrangement which the mother characterizes as being in the best interests of the child.
- While fairness is a theme that transcends all adjournments requests, it should not come at the expense of depriving the other party of the opportunity to have the matter considered fairly and in a timely manner.
- Any adjournment will result in some prejudice the mother. A shorter adjournment is more likely to be compensable in costs. An adjournment extending beyond September 2024 (the start of school) would result in serious prejudice and not be compensable in costs.
At paragraphs 23 - 25, Justice Pazaratz considered the Court’s “three basic choices”:
- The trial is not adjourned and remains on the March 2024 trial list. His Honour noted that the importance and complexity of the issues mitigated in favour of an adjournment so that the father has a reasonable opportunity to retain counsel.
- The trial is adjourned to October 2024. His Honour held that such a lengthy adjournment was unreasonable. The father was responsible for previous delay and it would be unfair to the mother and the child to have such an important issue decided by default (by virtue of the trial occurring after the intended departure date).
- The trial is adjourned to Summer 2024. Justice Pazaratz determined a June 2024 trial would provide the father with a reasonable amount of time to retain and instruct new counsel and would give the trial judge more time to render a decision (prior to September 2024).
In making the decision to adjourn the trial to June 2024, his Honour noted that “[a]s with everything else on this motion, it's a balancing act, trying to maintain fairness for both parents, while also giving primacy to this young child's need for timely resolution of important issues.” (at para. 25)
Conclusion
Justice Pazaratz granted the father’s request for an adjournment (albeit a much shorter adjournment) and made the trial peremptory on the father.
A few takeaways/reminders:
Parties who are also lawyers are entitled to the same accommodation as any other self-represented litigation. As noted by Justice Pazaratz, “[b]eing a lawyer isn’t the same as having a lawyer” (at para. 1).
Adjournment requests will be determined in the context of the primary objective of the Family Law Rules.
In determining such requests, the court will balance the need for matters to be resolved quickly (especially matters involving children) and the need for both parties to have an opportunity to advance their position. The court will also consider if any prejudice is not compensable in costs.