COURT FILE NO.: FC-21-314

DATE: 20210331

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amanda Issordeen, Applicant

AND:

Daveanand Budram, Respondent

BEFORE: The Honourable Justice C. Boswell

COUNSEL: Applicant self-represented

Lynn Kirwin, Counsel for the Respondent

HEARD: In Writing, March 31, 2021

ENDORSEMENT Urgent without notice motion

[1] As a principle of natural justice, court orders are generally not made against parties who have not been given notice of the proceedings against them and an opportunity to be heard. There are very good reasons to adhere to this principle.

[2] First, it is a matter of basic fairness. Hearings that are procedurally fair have an increased likelihood of achieving an outcome that is substantively fair. Hearings that are procedurally unfair, on the other hand, have a reduced likelihood of achieving an outcome that is fair and just. Moreover, a justice system perceived as unfair will very quickly lose the respect and support of the community.

[3] Second, it is fundamental to the proper functioning of the administration of justice. Our justice system is based on the adversarial model. That model is premised on the belief that the most effective means of getting at the truth of a matter is for opposing parties, acting in their own self-interest, to zealously promote their positions and to challenge the positions of opposing parties with equal zeal. When cases proceed on the evidence and submissions of only one side, the usual checks and balances inherent in the adversarial process are missing. In the result, there is an increased risk that the truth will not be exposed and the court will settle on a result that is neither fair nor just. See United States v. Friedland, [1996] O.J. No. 4399 (Gen. Div.), at para. 26.

[4] Consequently, the court is very reluctant to conduct hearings and make orders on an ex parte basis. They will do so in exceptional circumstances, typically where there is evidence of an imminent risk to personal safety and security or to the preservation of property. Even then, parties moving ex parte have a common law obligation to present their evidence in a full and frank way. When moving without notice a party can no longer zealously present only the evidence favourable to his or her position. He or she must provide the court with all of the evidence, both good and bad, known to the party and material to the matters in issue. Experience has shown that this obligation is rarely adhered to by parties seeking urgent relief in family court by way of a 14B motion without notice.

[5] On March 22, 2021 the applicant moved, on an urgent ex parte basis, for a wide range of relief largely focused on parenting issues. No effort was made to advise the court of the respondent’s likely position.

[6] The applicant’s motion came on before Justice Casullo who made a number of temporary orders against the respondent. She ordered the motion served on the respondent and set it for a hearing, on notice, on the open motions list of April 1, 2021.

[7] In accordance with Justice Casullo’s direction, the applicant served her material on the respondent. He retained counsel and sought to file a counter-motion seeking parenting orders more favourable to him than those provided for in the current, temporary order.

[8] The respondent was advised that his motion could not be accepted because motions on open lists cannot exceed 1 hour. The applicant’s motion is already set for 1 hour, he was told, so his motion would have to wait.

[9] The unfairness to the respondent is palpable. First, a sweeping order is made against him without notice to him and without his having had an opportunity to make submissions. Next, he is told that when the motion proceeds on notice to him, his ability to respond will be handcuffed. To permit this situation to continue would be contrary to the principles of natural justice and procedural fairness as I have described them.

[10] The parenting issues raised by the applicant are obviously contested. Surely the respondent must be permitted to argue that a parenting arrangement other than that proposed by the applicant is in the best interests of the children. The addition of the counter-motion will, in my view, add little to the time required to argue the motion.

[11] Having said that, the parties must be clear that the time allotted for the motion is one hour. For greater clarity, the applicant shall have 25 minutes to make her submissions. The respondent shall have 25 minutes to make his submissions. The applicant will then have 10 minutes to reply to any issues raised by the respondent in his submissions.

Boswell J.

Date: March 31, 2021