Judge Remains Seized: Is That Ever an Error in Law?

The question of a judge’s refusal to “unseize” herself was considered by the Ontario Court of Appeal in DG v. AF 2015 ONCA 290.

The parties were engaged in high-conflict custody litigation, a scenario where the appellant mother, who had supervised access to her children, refused to accept the trial judge’s decision that custody be awarded to the children’s father. The trial judge remained seized until he was transferred to another judicial district. Thereafter a chambers judge heard multiple applications and seized herself of the proceedings.

The appellant sought to escape the chambers judge’s “influence”, arguing that the judge had no basis to seize herself indefinitely. She also suggested that the judge’s management of the case would put the judge in a continual conflict of interest because her applications to vary custody and access would inevitably involve the judge reviewing her own decisions.

The Court of Appeal rejected her allegations of unfairness and dismissed her appeal, saying that active case management was part of the underlying philosophy of the Family Law Rules. The court referred to Rules 2(5) and 39(9) of Ontario’s Family Law Rules, noting that these rules represent the “gold standard” for case management in the unified family courts, where case management is most active.

The court remarked that in a non-unified Superior Court site, litigants could not avail themselves of all of the benefits of active case management. Nonetheless, the court noted that nothing in the Family Law Rules prevented a judge from using her inherent jurisdiction to seize herself of a case. Further, the court confirmed that a judge’s seizure of a case permitted reasonably quick access to justice before a judge who is familiar with the relevant facts and the parties.

While this is certainly the goal of judicial case management, speedy access to a seized judge is often not achieved, given the busy calendars and travel of Supreme Court judges in British Columbia.

In BC the Supreme Court Family Rules provide for a Judicial Case Conference with expansive management powers available to judges or masters who conduct these conferences. Remedies available include court mediation, discovery orders, document production orders, a direction that any applications be made in a prescribed timeframe, additional orders regarding the timing of specific events in the litigation, and additional case conferences. In summary, the court can make any order or give any direction that will further the objectives of the Supreme Court Family Rules, which is the “just, speedy, and inexpensive determination of every family law case on its merits.”

Lawdiva aka Georgialee Lang

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