Court rejects lawyer’s bid to question wife

The Ontario Superior Court has delivered an unusual decision that places a limit on when it can grant motions for questioning in family law cases.

Writing in Durbin v. Medina, Superior Court Justice Heather McGee reversed an earlier decision by her colleague, Justice Cory Gilmore, and ruled against granting a motion for questioning brought by family lawyer Stephen Durbin in his own divorce matter.

McGee found the court couldn’t grant such motions in cases where a judge determines the motives of the litigant to be questionable. She also made a $16,000 costs order against Durbin.

Durbin, a 56-year-old lawyer with a family law practice in Oakville, Ont., originally appeared before Gilmore on Jan. 4 in a divorce proceeding involving his ex-wife, Celia Medina, a 33-year-old administrator for the provincial government.

Gilmore found that because the parties were far apart in their respective positions in their sworn affidavits, questioning should take place to work out the discrepancies.
But McGee ruled otherwise this month. In her view, Durbin’s motives for bringing a motion for questioning were “not plausible.”

“I can discern no issue for which questioning of the mother would advance the case at this point,” wrote McGee.

“The parties’ respective parenting plans will be reviewed and assessed by the assessor. None of the minor irritants listed by the father as a topic for questioning are necessary to a determination of the children’s best interests.”

McGee then went on to question Durbin’s motives. “Mr. Durbin’s counsel rests heavily on Mr. Durbin’s need to test the credibility of the mother,” she wrote. “But the proposed topics are largely de minimus, personal to Mr. Dubin and frankly, call into question his litigation goals.”

McGee added that neither litigants nor their counsel could question the opposing side simply to “diminish, intimidate or attempt to embarrass a former spouse,” particularly if they hope to parent co-operatively.
But Durbin says that wasn’t his intention.

“Justice Gilmore demonstrated clearly that she had read and understood the material on the motions.

Following argument, she addressed the respondent’s solicitor, indicating that despite her most able argument, since the parties were diametrically in opposition in what they swore in their affidavits, she could see no way that a judge would be able to deal with the matter effectively unless questioning took place.

“Thus, I was certain the result was a foregone conclusion. January 25, the matter returned before Justice McGee. It is an understatement to say that I was surprised at both the result in the substantive decision and the costs award.”

The decision marks a rare move by the Superior Court and family lawyers say it reflects the shock litigants may receive when choosing to bring motions for questioning in sensitive family court matters.

William Abbott, counsel for Medina, says that although the family law rules often follow the Rules of Civil Procedure closely, they deviate from each other specifically in motions for questioning to protect a system often filled with unrepresented litigants who may be emotional and unprepared.

“The central question in this motion was whether or not Durbin had an automatic right to question his wife,” says Abbott.

“A lot of people presume they do have an automatic right, but Justice McGee’s decision shows there is an important distinction between the Rules of Civil Procedure and family law rules in this area.

The deviations are there because there are a lot of self-represented litigants in family court and allowing an unrepresented litigant to come up against a represented one in that way would be seen as unfair.”

Abbott notes McGee’s decision to award significant costs also highlights an important and different approach from the Rules of Civil Procedure.

“The costs she awarded seem to say the court will not allow litigants to potentially disparage clients through questioning.

Mr. Durbin’s tactics have often served to show that people should not act as their own lawyer, particularly in family court matters,” says Abbott, who notes it’s very rare “for motions for questioning to be awarded in circumstances like this.”

But Brian Galbraith of Galbraith Family Law Professional Corp. in Barrie, Ont., says placing a limit on which motions for questioning are successful and ensuring the practice is rare in family court serve to protect both sides in sensitive family matters.

“Divorce is inherently emotional,” says Galbraith, who adds he retained counsel in his own divorce several years ago despite being an experienced family lawyer.

“It is difficult to be objective about your own divorce. . . . I knew I could not see the forest for the trees. I needed someone to help me through the process who was a seasoned, objective problem solver.”

Still, Galbraith says the family court doesn’t often grant motions for questioning precisely to protect such litigants.

“The problem with the unrepresented in court from the judicial point of view is that our court system best functions with two strong advocates playing their role well. When parties are unrepresented — so don’t know the rules and don’t present the proper evidence — the judges can’t do their best work.”

The issue, then, is a challenge for judges. “Frankly, judges want to do good work, so I am sure that the numbers of unrepresented in family court is very frustrating for them. Judges would prefer both clients have lawyers so they can do their best job.”

In her ruling, McGee ordered Durbin to pay $16,000 in costs as well as 80 per cent of assessment costs. Medina must pay 20 per cent.
Family court lawyer Jason Isenberg acted as counsel on a per diem basis in the matter.

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