A high-conflict parenting situation led to a 10-day trial where despite the father’s primary care of their young daughter for over three years, custody was reversed and the father, who lived in Regina, was granted parenting time in Saskatoon three weekends a month and extended vacation parenting time.
He applied for a stay of the custody order, which was granted, with the court citing the following factors:
- The trial judge based her decision on facts not in evidence;
- The imposed parenting arrangement was unworkable as the appellant father lived and worked in Regina while the mother was unemployed;
- The trial judge failed to consider the strength of the child’s relationship with each parent;
- The trial judge failed to consider that the child had lived with her father for over 3 years;
- The child had special needs, was enrolled in preschool in Regina, was not toilet-trained, is non-verbal and sees a speech therapist in Regina.
As a term of the stay, the appeal court ordered three nights and 4 days of parenting time for the child’s mother every week, with the father to provide transportation for the mother to travel from Saskatoon to Regina. JL v. TT 2023 SJ No. 12
The findings on the stay application were prescient as the recently released appeal decision reveals. JL v. TT 2024 SKCA 38.
On appeal, JL alleged that the trial judge was biased against him and made various material errors in deciding the parenting issues. The appeal court found that the judge failed to discharge her duty to assist JL as a self-represented litigant by providing him with information about the rules of evidence and the examination of witnesses that were legally inaccurate. She also improperly restricted JL’s cross-examination and permitted hearsay evidence for the truth of its contents.
With respect to the level of assistance that should be provided to a lay litigant the court said:
“…trial judges are not required to tilt the playing field…a trial judge cannot provide legal advice…become an advocate for them, guide the presentation of their case, bend the rules of evidence, or decline to apply the substantive law to compensate for their lack of legal knowledge (Dujardin v. Dujardin Estate, 2018 ONCA 597)
The appeal court cited examples of improper evidentiary rulings including when mother ‘s counsel objected to a question posed by JL to his mother. He asked “do you recall the weather on January 27th?” The court agreed that the question was “leading” and overruled it.
At another point, the trial judge advised JL that he could not ask “yes or no questions” because that would be “contrary to the rules.” She also told JL, more than once, that he could only cross-examine TT’s witnesses about things they had been asked in their examination in chief, a clear misunderstanding of the rules of evidence where the scope of cross-examination is necessarily broad, and in cross-examination a party is entitled to delve into new matters relevant to the cross-examining party’s own case.
The appeal court cited Wigmore’s oft-quoted words that cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth”, cited in Sopinka, Lederman and Bryant’s “The Law of Evidence in Canada”, 6th ed. (Toronto LexisNexis, 2022)
Further, the trial judge misapplied the rule in Browne v. Dunn advising JL that he was obligated to lead evidence about anything that he may later wish to put to TT or her witnesses in cross-examination, and that failure to do so, would mean the subject could not be canvassed. Citing R. v. Knox 2017 SKCA 8 the court said:
“The rule in Browne v. Dunn is a rule of fairness…This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given a chance to address the contradictory evidence while he or she is in the witness box.”
An example of the trial judge’s error is clear in the following admonition she gave to JL:
THE COURT: “And we’re going to focus on her evidence and Browne v. Dunn. We’re not going to try to bring in new stuff. Okay?”
With respect to hearsay, the appeal panel observed that the trial judge improperly limited the use of party admissions and admitted hearsay for the truth of the statements. The starkest example was when the trial judge permitted TT to introduce a significant amount of evidence that was pure hearsay. In her testimony her lawyer asked her to repeat things that other persons had told her about JL, clearly inadmissible hearsay as the out-of-court statements were made by people who did not testify. Nonetheless the trial judge did not recognize that this evidence was presumptively inadmissible.
The appeal court also found that the record revealed a disparity in the way the rules of evidence were applied to each of the parties. TT benefitted from a relaxation of the rules of evidence, JL did not. However, while the appeal court described the legal errors as “pervasive” they did not accept JL’s argument that the trial judge showed bias, but did opine that the errors were so significant as to deprive JL of a fair opportunity to present his case.
The appeal was allowed and a new trial was ordered. This decision is a treatise for lawyers on the evidentiary issues that arise in a family law trial and ought to be required reading for law students in Canada.
**This article was first published in LAW360, a publication of LexisNexis Canada.
Lawdiva's Blog 