Trial judge ought to consider submissions after giving reasons

Today's Court of Appeal decision in Jamieson v. Jamieson, 2008 ONCA 675 deals with a bitter family law dispute with self represented parties.

Much of the decision is highly fact specific but one part of the decision is of interest generally and not just in the family context.

At the end of trial the Court gave oral reasons related to access. The wife immediately objected saying the decision was unworkable. The Court declined to entertain submissions saying the decision was made.

The Court of Appeal found this to be an error. The Court was not functus and ought to have heard further representations.

This last point is of broader relevance and applies equally in all areas of litigation.

The Court held:

[13] We are, however, concerned with the trial judge's disposition on the issue of access. At the conclusion of the trial, the trial judge gave oral reasons for judgment, including a schedule of access. The appellant immediately raised concerns, pointing out that the times at which access was to be granted were unworkable given the requirements of her employment and traffic considerations. The appellant indicated that both the pick up and return times were at peak traffic times and could not be complied with given her hours of work. In response to these concerns, the trial judge indicated that she did not sit in appeal of her own orders and that, subject to the order being set aside on appeal or the parties consenting to a change, she was not prepared to address the appellant's concerns.

[14] It is apparent from the concerns raised by the appellant that certain aspects of the access order were problematic and may not have been workable. The trial judge seems to have recognized this, but she was nonetheless unwilling to consider the further submissions of the appellant. At the point when the concerns were raised, the trial judge was not functus and, in our view, ought to have received further submissions on the issue from the parties and sought to address the concerns raised. This is particularly so given that the appellant was representing herself and the concerns raised appeared, on their face, to have merit. Where, as here, there is an acrimonious relationship and ongoing issues concerning the exercise of access, it is important that concerns respecting a workable access schedule be fully aired.