JusticeAndrea Himel

2Oh, hello, hello. Thank you for having me. As I mentioned in some emails we had recently, I spent most of Christmas break in my downtime listening to various episodes, and I have learned so much about my colleagues and about lawyers in the profession. So thank you.

5Born and raised in Toronto, went to McGill did my joint law social work degree at U of T. So born and bred in Toronto.

7So I am. She is my father's second cousin, and it's a pleasure when I run into her to see her. And I met her actually a lifetime ago when I did my placement at the Children's Lawyer as part of my social work degree. She came down. I think she might have been with the public guardian at that point. And we had coffee, which was really nice.

11Sure. I mean, there was a pilot project many years ago, sometime in the '90s, I think, with this idea that we should be trying to serve families in one place. And about 2018, they did their last or their most recent addition to the UFC Court. And I think it's about 50% of the population now gets served by Unified Court. I sit with my generalist colleagues and when they have time, they help us out with some family work. But most of the family work done in York Region are done by the 6 full-time and 1 supernumerary judge. So we do everything. We do everything from the child protection to the adoption to the family responsibility office.

12To regular, what we call domestic cases. We do it all. If you litigate in Toronto, then if you have a property claim or a divorce, you have to do that at 361 University. If you only have child-related issues or you have child protection issues, you can deal with those at either 361— well, not the child protection, that's only at the OCJ, which is on Jarvis and North York— but you can deal with your other issues at either of those courts. So the idea was, why have two places doing two different things when we can do it all in one place? And that's what we do.

14That's it, day in and day out.

16No. So outside of Toronto and perhaps Ottawa, I don't think there are any of those distinct rotations. So at the balance of the Superior Courts across Ontario, if there's a unified family court, you might get what's called a family patent. That's what I have. Or you get a generalist patent where most of your work will be some combination of civil and criminal, and you might be doing some family depending on the location and how things go.

18So I always wanted to be a family court judge, and I was only ever interested in where law and social work connect. So when I thought about law school, it was always with this idea of doing it with, with social work. So U of T has a very small but really a terrific program where you do both degrees in a 4-year program. So a year of social work, a year of law, and then 2 years combined. So it gave me the chance to do a placement in my social work year at the Children's Aid Society of Toronto, and then in my combined year to do it at the Children's Lawyer, where I worked as what's now known as a clinical investigator.

19And I did some policy work on solicitor-client privilege. It's really about the merging of the two. The culmination of that degree was a thesis that I wrote that was published in the Canadian Family Law Quarterly about parental abduction, which I reread recently and sort of interesting to see what I was thinking 20-some-odd years ago. So anyway, where's it— how did it fare today? I think it fared me pretty well. I know if I've been very lucky, I really have been able to look at where social work and law merge. Throughout my career, I articled at Bay Street at a firm called Smith Lyons, but they happened to, while I was there as a summer student, be retained to act on a criminal case defending a social worker accused of the death of a baby on her caseload.

20And I spent a good chunk of my articling year, you know, defending her in this preliminary inquiry. So, you know, I jumped from there to a firm called Torkin Manes where I practiced family law. And as you can imagine, Family law really is the culmination of social work law. And, you know, today I certainly use my mediation skills and I think I have some credibility because I come at looking things both as a social work perspective

23Sure. I mean, I think we have to start with step one. Right, which is, what is your— who's your client and what's your obligation? I mean, obviously your client is the person you're helping, or if you're a mediator, the people you're helping. But I don't think you can answer that question without reflecting on the children, if there's children in the family, because the reality is I think you have an obligation to be considering their needs and their interests as you work with your client. I think that it's not a traditional you just take your instructions from your clients and those are your positions. I think that family lawyers first and foremost also have to figure out what kind of lawyer they want to be.

24Do they want to be client-driven, rights-driven, more facilitative? And that also will affect the kind of practice people choose. But the bottom line is this: people are at very, very significant emotional places when they come to see you. Very much. We talk after people are grieving about the 7 stages of grieving. There's anger, there's all those stuff. Those all are part of what happens when people separate too. And the 2 clients, you acting for one and the person acting for the other, right? The clients are at different places. So again, you have to understand where your client's at and really be giving them some advice. And in terms of managing them, you have to figure out what you feel comfortable with.

25Because it's not just about mimicking out what they say. If you don't feel comfortable with the instructions they're giving once you give them the advice about what's sort of reasonable and what's sort of child-focused, I think you have to decide if you want to be the kind lawyer who does that or just says, not me, no thank you. So I do think there's a huge element of client management. Because of where the clients are at, there's often an element of really almost being a social worker or the risk of being a social worker to your clients. And there's always going to be some element of that. But really, you cannot do that for your client.

26You have to help them find the right person to support them because your job is to explain the law, give advice, and hopefully with them work on a plan. And I'm all about roadmaps, all about roadmaps. So when you're meeting with your client, it's a family law client, from day one, what's the end goal? What's the range of where we can go from here? It's a teamwork effort. So I do think it's different than a traditional solicitor-client role. And I think the court system in family law is changing as well, right? We don't have— for many years we haven't had a strict, you know, we go from motion to motion, motion to trial. A lot of the court work we do is about trying to get people to settle because clients who have control over the outcome of their cases tend to make more lasting agreements that are, you know, have better rates of compliance and are more child-focused.

28I think that's actually a really great way to express it, for sure. Right. I mean, 100%. You have to put up with a lot of conflict if you're going to litigate. You have to be ready to be on your feet. You also have to, like I said, manage all those ethical duties that you internally might deal with and the ones dealing with between you and your client. And, you know, frankly, most family lawyers don't make anywhere as much money as most non-family lawyers. A lot of family lawyers rely on legal aid. Legal aid has been constrained, especially in the last few years. So it's difficult to manage. You have a lot of sole practitioners, a lot of family lawyers who don't have a lot of good mentoring, which is really unfortunate.

29A lot of family lawyers working out of their homes to save on money without assistance, right? So it's really And you have very needy clients who don't understand the boundaries of 9 to 5 and expect to be responded to. So I think it's actually a really good way to say it. It is a calling and it's not for everyone, which is why I think dabbling in family law is a very dangerous thing to do for your clients and for you from a law society point of view, right? You know, there's a certain level of expertise. It's not, okay, well, you know, the people who don't really want to practice family law, don't practice law, they should go practice family law.

30It's not like that. It actually is quite complicated. And the people who want to mediate, mediation is not actually easier than litigation. It's not like you can choose all these easy routes in family law. It's complicated, frankly, especially as a judge now. A lot of our cases have corporate commercial elements to it. They have immigration elements to it. There's constructive trust, there's third parties, oppression remedies, right? So you might go in thinking you are going to just focus on, and maybe you choose to, right? Children and their child support and such. But if you have a broad-based family law practice, if you practice in Toronto or you practice in York Region and a lot of other places, if you're open to it, you can have a very rewarding career involving a lot of different areas of the law.

31But you have to find that calling.

33Of course. A family law case with children, you are dealing with business partners. You are dealing with— they are forever business partners. It does not end at 18. It doesn't, right? And so they have got to figure out the conflict and they have got to figure out how their long-term relationship's going to go when you as a lawyer are gone. So it's very different than parties who aren't parents because they can, they can have— and sometimes there might be ongoing spousal support where there's payments every month. Sometimes it'll be a monetary, almost like a business, you know, division, division of a business, right? You take this, you take that, have a good life. That's it.

34So it is very, very different for sure.

36I don't know, actually. That's a good question. I mean, I have a lot of catchphrases and I like to throw these out in my course.

38Oh, I have lots of them. And so the first one I'll start with is reality check, right? They'll come in, I'll say, I mean, I've read their materials. I actually always start by asking them about their children to describe their personalities. And then I talk about what they want for their children when they, as they grow to be the adults they want them to be. What do they need from both the parents? And I have about 10 statements I put to them and they always say yes to everything. 'Cause they're things like, you know, want to have positive relationship with the other parent, don't want to put them in the middle of these conflict, and you know, that type of thing.

39So and then I ask them what they want to add, and then they both agree with the other parent's statements, and I start there. Why do I start there? Because this is about the children, right? And then in many cases, I tell them that, you know, today the conference is a reality check. You know, we need to focus on where we go from here. I'm not spending the hour I have been allocated talking about the 10 years that got us here. And all these things that he or she or they did to you. So where do we go from here? It's road mapping the future because that's the way it goes, right? So I don't know if that answers your question because I can't remember what your question is, but there you

41right? And because of social media, because of what their friends tell them is the right resolution, right? Where are they getting their family law advice? Which is actually why family law should be taught as a required course for every lawyer, because every family has family law problems. Not so the lawyer can give their family and friends legal advice. Obviously, they shouldn't do that. But there's so much misinformation out there that it's really important that everybody who practices law has a fundamental understanding of family law. Oh, I should add, obviously my comments today are my own perspective. I'm not speaking on behalf of the court. This is just my experience, not only as a family judge, right?

42I've only been a judge for a couple of years, but I was a mediator and a family lawyer for many years before that.

44I can't answer that question, but I will answer this question. What is the most frequent error that people make?

46Here it goes. That they should have a 50/50 schedule because that is what is right. That's the law, and that's what's fair. 50/50 of their children, 50/50. That is actually not the law in Ontario, and that's something that people would learn in law school. They taught family law and people had to take it. So what is the law in Ontario? It is— there is no presumption of 50/50 parenting. There is no presumption of any parenting. What it is, is it's a child's right to have a good relationship with each of their parents, and the schedule for any given children have to be based on the best interest of the particular children on the particular case.

47Involving the particular parents. 50/50 schedules tend to work better when parents live relatively close together, when there's a reasonable amount of cooperation, when the kids are of school age, and they tend to work not as well with obviously infants, with teenagers who don't want that type of schedule. Once children reach a certain age, usually around 8 or 9, the United Nations Convention of the Rights of the Child make it clear that professionals need to be asking those or finding out what those children's views and preferences are, and that courts and parents and professionals need to attribute a reasonable amount of weight in light of the children's ages. So that's error number 1. Error number 2 is that, well, you know, once I have my 50/50 schedule, well, then I'm not going to pay child support.

48So that's not how child support works either, or that I can just not pay child support for whatever reason, right? Child support is in accordance with the guidelines. The starting point is it's with the payor's income. If the payor has the children more than 40% of the time, then the guidelines don't have to apply. However what usually happens is a set-off— not always, but usually a set-off. So if the kids are with the parents, the other parent, 6 out of 14 overnights or 7 out of 14 overnights, there's often a set-off. Now, where families have more money That might mean there's just more spousal support. Why? Generally speaking, it's usually better for children to have similar lifestyles in both people's homes, right?

49So that's mistake number 2. Mistake number 3 is that litigants seem to think that, you know, property also is just 50/50. It's more complicated than that. Depends if you were married, not married. Then we have trust claims, we have equalization. That's why really all clients, all possible litigants really benefit from speaking to a family lawyer, which of course is expensive. So there are some new ways people can get help through the Limited Scope Project where you can get a limited retainer. I founded an organization called the Advice— or co-founded— Advice and Settlement Council, which I think is still running. So online private duty counsel, there's publicly funded duty counsel. And then in terms of the parenting stuff, you know, the AFCC Ontario, I was on the committee that we wrote the guidelines.

50Those guidelines are available online for free to litigants and lawyers. And they set out the range of what are reasonable parenting time plans for kids of various ages, special needs issues, all sorts of things. So, you know, it's really a matter of educating, you know, educating yourself and understanding those misnomers so that when you have, you know, when you have those clients come in, you can make sure you correct that. Oh yeah, here's the other big mistake. A lot of the clients want sole custody, which we don't, by the way, we don't have custody anymore. It's called major decision-making, but they want that. Whatever you want to label it, that's what they want. And they don't want joint.

51But the reality is this: for most families, by the time they have come before the court, most of those major decisions have been made. The major decisions are education. Kids are going to go to the school where they go, or local to wherever the primary care parent is. Or if the parents are in a shared parenting arrangement, you know, whatever the closest one is to whoever, you know, wherever it makes sense. Number one. Health. Most children are going to continue to see the doctors and the dentists that they always saw. Most parents will easily agree they're likely to follow the doctor's recommendations about major issues like tonsils out. Day-to-day issues about falling out of a tree, obviously whoever has care of child, not a major issue.

52Religion and culture. Most children have been already raised in some sort of religion and culture, and Supreme Court of Canada has made it clear each parent's allowed to share their respective choices with that child. And extracurricular activities, well, those should only be booked on the parent's time once you know what your parent's time is. If it's shared time like the weekends, then those should be shared. In other words, people have to agree. So those are major decisions. That's not where most people have problems. Most people have problems with day-to-day problems, communication. They're not communicating well with the other parent. The other parent keeps, you know, asking for changes or dropping the children off late.

53Day-to-day things. They don't like what the other parent's serving for dinner. That type of thing.

55Well, let's start with the reading material like I suggested. The AFCC Ontario Parenting Guide has been adopted by many judges now. It's sort of like the way, hopefully, the way that the spousal support guidelines have gone, which is they're not the law. Judges are not obliged, but it's a helpful tool. And as the tool is used more and more, you know, it becomes more entrenched. And those guidelines are very, very clear. Clear that there's no favouritism between mothers or fathers in the system. And that again, that judges are expected to be looking at every family in terms of the children's unique needs and the parents' ability to care for them. And part of that does have to do with the parents' roles before the separation.

56Not all of it. I mean, there are sometimes disengaged parents who want to step up post-separation and courts let them. Why? Because the children will do best according to the social science research. —and that guide, by the way, is based on social science research—if they have a good relationship with each of their parents and good amounts of time. Now, sometimes family violence obviously has an impact on the schedule and an impact on decision-making. So, you know, that's a consideration that also has to be taken into account. But in terms of the courts being, you know, anti-father, I don't agree. You know, the judges are very well trained. You know, we get a lot of training in all sorts of issues, including family violence including parenting time.

57And and, and, you know, I think we look at every case on its merits.

59Sure. There's no right answer in family law cases. I mean, maybe in commercial cases it's easier. There's always a right answer and a wrong answer, and you just have to be the one who— there's not, okay? So, and I will say this to clients all the time, right? Your children are not going to wake up when they're 25 and say, I had a terrible childhood because I only stayed at Parent A's house 5 out of 14 overnights and not 6 and not 7, only 5. I had a terrible childhood. Okay, it doesn't really matter ultimately. In many cases, whether it's 5, 6, or 7. And by the way, in most cases with school-aged children up through early teens, the kids will live with at least 5, 6, or 7 overnights in a 14-night period.

60That's the reality. So how much time and money do people really want to argue about that? That's another thing, right? But there's a range of what's reasonable. But here's what will happen. There's a good chance your kids will wake up when they're 25 and think they had a terrible childhood. If every time they were late to go to one parent's home, there was an argument. If they lost their homework at the other parent's home, it was, you know, a huge problem. It's the conflict. Children do not do well in the long term when their parents continue to be engaged in conflict. Some conflict post-separation is not that unusual, but usually by the 2-year mark, things have calmed down.

61But if the parents continue to engage in this all-out war, and we have case law after case law, article after article, that's where the children will suffer. So we just look for what's reasonable. What's reasonable. We're not looking for best day.

63Sure. There's no problem with people who want to cohabit when they are no longer want to be in the relationship. Right? There's no issue. We call that nesting. Right? So, well, sorry. First we say they live separate and apart in the same house, which is often the first, especially during COVID Lots of people were living separate and apart in the same house, usually with one parent moving to the basement or moving to some other room in the house. Okay, so And then after that, sometimes parents move on to nesting where they actually take turns in the house and they stay somewhere else for a while. Neither of those solutions tend to be long-term solutions because of the conflict.

64It's very difficult once you no longer want to be cohabiting, you know, married or in a relationship with someone to live in that household. As I mentioned to you, sometimes one person is the ender of the relationship. So that person emotionally has moved on during, you know, those 7 stages I talked about. One person's moved on, right? They're on, they're okay, they can co-parent. And the other parent's emotionally destroyed by what's happening here. So cohabiting long-term post-separation, and also people perhaps want to date and have new partners, it tends not to work. And we do see it before parenting plans are agreed to or ordered by the court because there is this worry that if somebody leaves the home, they're going to be disadvantaged because there's going to be this status quo.

65So, you know, for a long time lawyers have advised don't leave the house, which, you know, may well be good advice, except of course if there's a risk of family violence or allegations of family violence, because as soon as there's, you know, a complaint to the police and the police possibly lay charges, that creates a whole different problem for the person who has charges against them. Sometimes both parties have charges against them. And as you can imagine, close separation, you know, people are not only emotionally vulnerable, but physically vulnerable. Financially vulnerable, right? So there's limited amounts of money, and if people have to deal with criminal law charges— and frankly, incidences of violence are most likely to happen around the time of separation— so it's not safe for the children in some cases for people to continue to cohabit.

66So that's not a bad plan, it's just not a realistic plan. The nesting plan theoretically should work better, right? The parents take turns, they each stay with a friend or Some people rent an apartment and they share the apartment and they share the house, but it still tends not to be a long-term solution.

69Okay, so first of all, step one is looking at the legislation, right? So we had Major Divorce Act amendments in March of 2021, which really set out the best interest test. And as you pointed out, right, there's multiple elements to that and not one is weighted. So they're all in, you know, they're all weighted, I guess, in accordance with it, with any particular case. It's not the social science research that dictates the best interest. It's actually, of course, the legislation and the case law that dictates the best interest, right? And there are cases that in fact have experts. So for example, someone like Dr. Fidler is often called upon to testify, particularly about cases about alleged alienation, parental, you know, child resistance, and then reunification.

70And then from there, you know, that cases adopt those kinds of cases, and that becomes the body of the case law. However, there is an increasing recognition that social science research is relevant and useful in family law and family law decisions, because those are professionals who are going out and researching what's best for children. But in terms of whether, let's say, religion conflicts with, I don't know, some other component, I mean, It is a matter of looking at it in every case. We can't say, well, religion trumps medical. We have to look at what's the overall picture here. Yeah, here's something, right, that we always have to remember. If parents can agree, they have so much control.

71They can choose which of the best interests to focus on, right? But it's when they don't agree That's when they need lawyers' help and mediators' help. And mediation is very important in family law. It gives parties time to really flush out what their interests are and their needs are and move away from their positioning and really focus on their situation, whether it's with or without children. Those are all things that we have to look at sort of in a more broad way in family law.

73No, no, no, and no, no, no. So first of all, you have to remember that most cases never come to court, right? So most parties either figure it out themselves or hire lawyers or mediators or social workers to work on the plan, and we never see those cases. So we only actually ever see the cases that are having problems. The cases that we do see, often they are high conflict. Often there has been the involvement of the Children's Aid Society, often not because of actual harm, physical harm, or whatever the other parent has alleged—sexual abuse or all this, often because of the high conflict and the emotional harm of the conflict. So we need lawyers, and good lawyers do prioritize settlement, but you don't always get settlement on day one.

74But the family law system, right, is designed to first and foremost deal with cases by case conferencing. So court, you know, people come in and we talk about it and we try to resolve things on consent, and good family lawyers know how to do that. I mean, there are a lot of unreasonable positioning. That's back to the first thing we talked about. And sometimes lawyers do, often in the court documents unfortunately, lawyers do express, you know, at least at the initial stages, there's clients, you know, this is my client's position. And that does make the conflict worse when those court documents come across so aggressively. It would be better if the court documents really tried to take a less aggressive approach.

75But unfortunately, The actual system is still designed towards a trial, right? So when you start your pleadings, the endgame is still a trial, even though I don't know, maybe 0, 1, 1 to 5% of cases actually make it to trial. Most cases will settle. So I think that lawyers, you know, some lawyers are better off, better than others about settling cases earlier on. And clients do choose the lawyers they want, right? I mean, there are lawyers who are good litigators. And clients want good litigators, they, they will go to them first.

77Okay, so I would say obviously the best would be expert evidence, but, you know, most family law clients cannot afford experts, right? They're not— I mean, they can't afford experts. So realistically, realistically what we end up with in terms of experts, right, are we might have the children's lawyer do a clinical investigation, but they're not retained by one side. They're the court's, you know, assistant basically, or we might have the children's lawyer or someone privately do a voice of the child report, right, where they meet with the children and set out what the child's views and preferences are, or we might have in some cases someone like Dr. Fethra Cobb, but that's where I think what courts end up making determinations about in their decisions is actually the most helpful.

78That's the easiest way to get the social science research in, is to be able to rely on another judge's decision who either had the expert or who had the social science research. I mean, otherwise, I mean, I do have it argued in front of me on motion sometimes, or I have it introduced, but it doesn't have the same weight unless there's been judicial notice of it. And there is some judicial notice now of certain So I would say actually we're getting to the point perhaps where the AFCC Ontario Parenting Guide, where judges are increasingly taking judicial notice that is helpful, that some of the suggested parenting time schedules or decision-making ideas in there are helpful and useful instead of requiring someone to prove all the points that's there.

79Because when we did the AFCC Ontario Parenting Guide. We involved a multidisciplinary group of social science people, professors, lawyers and judges, mental health professionals, and then we used the available social science research. So we didn't come up with this, right? It's all based on reliable information and, and people who had expertise. And again, it's intended as a guide. It's not determinative, but social science research, bringing that into court, it is a challenge. I mean, that's the reality. Obviously, you know, courts are based on evidence.

81Okay, the children's lawyer is not amicus. There has in the last few years been the use of amicus, so that's a separate entity of its own. The Children's Lawyer, when it is a lawyer being appointed, they do different things. When it's a lawyer being appointed in a custody and access, in the old terms, the parenting case, they are the children's advocate. They take instructions from the children and participate in a conference or a motion or a trial as the child's— children's advocate. Now they do more than just mimic what the children are saying. They provide the children's views and preferences in context. And what's context? It is the strength, independence, consistency, right? They don't just meet the children once.

82Consistency and other important factors, observations. They provide all that to the court. When cases go to trial, often the children's lawyer will by then have appointed a clinical investigator to work with the lawyer so that the lawyer has a witness. Not the child, but the actual social worker who's been working with the lawyer to collect the evidence. Often they'll be giving information of third-party information. They might speak to the school and have some evidence about that. Now that's Part A. The other part of the children's lawyer is that they have clinical investigators who are usually social workers who will go out there and do a best interest investigation. It's a different section under the legislation.

83And in that best interest, investigation, they will obviously meet with children and put their views and preferences in, but they will also take a hard look at the child protection allegations, speak with the doctors and the teachers, and come up with a recommendation as to a parenting time plan and decision-making regime that is in the children's best interest. And then the third thing they do is they do these Voice of the Child reports, which are sort of quick and easy. They will go out and either by Zoom or in person meet a child a couple of times and just be able to give to the judge maybe a 5-page report that says this is what they said.

84And if they have any ability to comment on their observations, they might put that into—

87Oh, it's actually way worse on screen, right? Yeah. And I do print. I print various things if I want to read it more comfortably. But, you know, those issues that I raise, they're not far off of what Justice Akbarali raised in her interview with you. I mean, the bottom line is this. We are extremely busy. Okay, so there are 2 million people who live in York Region, 2 million people accessing our court, and we have 6 full-time judges and 1 supernumerary judge. During COVID we were really far behind, and we've actually done a great job catching up. But part of what enables us to stay caught up is the judges are working really hard, as are the staff and as are the lawyers.

88I don't mean it's just us, but in order to stay afloat, we need the page limits to be complied with. A 1-hour motion is 15 or 20 minutes for each side and a 5-minute reply. It's not 59 minutes worth of arguments, right? It's not. That's not a 1-hour motion. And we have these things stacked. So it's really important that lawyers comply with the page limits because we need you to focus us on what we actually have to do in that available time slot and to be realistic about it. So those things are really, really important. Obviously, making sure the arguments are on point. If there's important case law, making sure you direct it to us.

89Don't add excessive amounts of exhibits. The guiding idea is 10 pages of exhibits, except for certain things that don't count. Don't send us 100, right? Chances are what's going to happen is the judge is going to write back and say, or tell you when you show up, I didn't read it. I didn't read it. It's not reasonable. You get an email from my judicial assistant when the docket comes in where I have standardized a lot of the important things about the page limits, the time limits, so that people come with their bills of costs, their offers to settle. You know, I like to stay on top of my workload, so it's really important that everybody follow those directions.

90Right.

92I think that's probably, probably accurate. So we have a Newmarket. Newmarket, I think, has really changed a lot. I've only been— I was a COVID judge, so I don't know what it was like before, and it was a long time since I practiced in Newmarket. But when I practiced in Newmarket, you could go up to Newmarket and wait all day and never get heard. You could be given trial dates like years and years. We don't do that anymore. Month. So everyone's getting heard, people have their time slot, most of it's in person, but whether it's in person or online, you're getting heard, you know, close to your time. In terms of trials, we are moving cases to trial.

93People need resolution. We had about 90 cases 2 months before our trial sittings. We sit twice a year. So in November, we sat for 3 weeks. We had about 90 cases. By the time the trial— trials came, we were down to maybe 43. We also had a whole bunch of long motions. By the time we actually heard our trials over 3 weeks, only 7 didn't get heard from what I understand. So that's 90 cases that were supposed to go, and a few got adjourned to May, but 90 cases that were, you know, we were on the set to go either got resolved or they were heard, or there's a plan to deal with the remaining, you know, few in the next few weeks.

94So very few cases go to trial. Most of the cases that go to trial only have zero lawyers or one lawyer, and/or they have a client who has— one or more clients who have, you know, certain challenges that have impeded their ability to settle. For example, some clients do have mental health issues that interferes with their ability to be reasonable. And so, you know, as a lawyer for them, there's not that much you can do other than take the case to trial. But yeah, very few cases actually go to trial, which is a good thing. We use every court date as a way to triage cases, right? Back to my road mapping, right? What's going to be the next step?

95In my view, in most cases, mediation is the next step. So who's going to be the mediator? When are you going to mediate? And then, you know, is there going to be questioning before or after the mediation? Do we need to have a motion? What's the motion going to be? You know, we're not moving motion to motion anymore. We don't have the capacity for that, and we need to share the resources with everyone. And motions are expensive. In my court, motions seem to cost about, I don't know, somewhere between $5,000 and $8,000, $10,000 each side for a 1-hour motion. People can't afford that. The end result is if litigants spend too much money on the litigation leading up to this trial, they end up being self-represented, which is back to what I said before.

96Most of the cases that go to trial, either one or both parties are self-

98Okay, so we have this trial scheduling endorsement form which usually the lawyers and the parties have come to court with 2 months before, where we— that's where we finalize roadmap. And we are moving towards having all trials, most of the evidence in chief, go by affidavit. So that is really the lawyers' opportunity to control their case. That is a gift, a gift to the lawyers. Why? Because yes, we have page limits. Page limits, you know, my starting point for a 5-day or 7-day trial, 20 pages, double-spaced, font 12. Now I'm willing to negotiate if people really think they need more, but often the lawyers are able to constrain themselves. Themselves to that, and they have control over that.

99It also allows the lawyer— and there's timelines and all that— the chance to know the other side's case before, so they can prepare their cross-examination. Now, there's no limits on the exhibits, but, you know, good lawyering means that they don't bring in cartful and cartful of proposed exhibits, because that's what they are. They're not exhibits till I make them exhibits. They don't bring in those cartfuls. They just give me the ones that I'm likely to need. So, for example, right, If at the end of the day the exhibits for a trial are this thick, there's 2 months of Rogers bills, there's, you know, custody and access, the parenting time assessment, that type of thing, you know, don't give me, don't bring to court all 5 years of the Rogers bills.

100I don't need that. If I need it, I'll ask for it. You know, when we were doing virtual trials, and most of our trials now are in person, the digital piece of it was even harder. I mean, I still like paper, so I like my exhibits to come in by paper so I can, write on them and look at them and such. We don't yet have a perfect relationship with Caselines in York Region. We are having some challenges with Caselines and there's a variety of reasons for that. But, you know, in terms of the good trials, I don't think Caselines is going to make it or break it. The good trials come from the good advocacy, you know, presenting your compendium, your legal argument, you know, at the beginning of the trial, really conceding the points or settling the points where they should be settled so that your client takes the high road, right?

101That the issues they come to trial with are the ones that they actually think they have a claim on. Don't come to trial with 10 issues if 5 are loser. Settle the 5 and come to the trial that we really need help with. You know, what I try to always explain to parties and remind the lawyers is a 3-day trial is much cheaper than a 5-day trial and also easier to get, right? Because we have 3 weeks twice a year with our 6 or 7 judges, and, you know, we have to keep plotting them in. It's easy to plot them in when they're 3 days. Obviously, it's very challenging for lawyers if they get their trial started near the end of the sittings and it has to go over 6 months to the next sitting.

102So we try to avoid that because that's not a great resolution for everyone.

104Yeah, it's not— it's really to help the client. I mean, there's a couple of things, right? So yes, let's say in a 5-day trial, the main parties will each have about 2 hours. So not nothing, 2 hours, both to update because there might be new evidence. Since they swore the affidavit. Also to give testimony that might be hearsay, right? So that they don't put the hearsay in, the lawyers spend 3 hours arguing about what's hearsay, what's not hearsay. You know, the good lawyers will save the possible hearsay for the oral part of it so that they can argue about the evidentiary issue on the spot. And then also to make them feel comfortable and so that they have a chance to tell their story.

105A lot of family law cases from start to finish are clients who need a chance to tell their story. So, you know, you have your 2 hours. And then in terms of the minor witnesses, like the uncle or whoever's coming, those people only really need a chance to feel comfortable, like you pointed out. So they would be asked to adopt their affidavit. Are there any mistakes, anything they need to change? They might be asked a few warm-up questions, and after 10 or 15 minutes, off they go to cross-examination.

107Well, I mean, obviously the judges have control, right? So I'm managing the case. We have single judge case management in Newmarket, so I oversee certain cases that then get given to somebody else if there's a motion, and somebody else, you know, if there's a trial. So usually in the trial scheduling endorsement form, it says what's going to happen with those statements of law or factums or whatever you want to call those. And I mean, ideally they are delivered on the beginning of the trial. Now sometimes they're not, you know, which case I just, you know, I work with the lawyers to see what they can manage. But, you know, I want that before the end of the trial when I'm really sitting down to start to think about.

108And in terms of, you know, how it fits in, it goes into the closing argument, right? Right? Once they've, you know, heard all the evidence you know, we set up what the law is and they fit the little pieces of the puzzle into the law.

110Well, a lot of family law trials end up coming down to credibility, right? A lot of what happened during someone's marriage or cohabitation for 10 or 15 years, people have completely different stories. So I mean, obviously the more evidence, you know, the more actual factual evidence, but, you know, attacking someone's credibility often with documentary evidence or however, they can do that. That's an important part of cross-examination. Also, it really does help to give the judge a better idea. So when a family case starts, right, the case management judge only has a few of the puzzle pieces, right? That's how it works. And then they get to know the— we remember our file, we take notes on our files, people come back.

111So, you know, by the end, by getting close to a trial, there's a pretty good picture. There aren't that many gaps. There's a pretty good picture. So ultimately, that picture is recreated by the judges— sorry, by the lawyers for the trial judge. And, you know, how that picture ends up really looking depends on, in part, the cross-examination, right? What happens.

113Yeah, we have single judge case management. So it's not perfect. You know, sometimes I'll get a case that or somebody else did the last case conference, but most of the time people will come to me for a case conference. They will come to me for a settlement conference. If I think another settlement conference is helpful, I will book an extra one. I mean, theoretically, there's only supposed to be a certain limited number, but if I think it's helpful in moving things along, I'll have them come back. If there's a motion, I won't hear a motion if I've given an opinion because that tends to be against our idea of what's reasonable and fair. And obviously I won't hear the trial.

114I will do the trial scheduling endorsement form. So that's what I was saying to you, right? I'm setting my case. I'm setting the case up for somebody else to actually hear. So I try to be as careful as I can to make sure that the case is in as good shape as it can be for somebody else.

116Oh, my pleasure. Thank you for having me. Have a good day.