Law Times

Law TiMes • March 5, 2012 NEWS PAGE 3 Stephen Durbin must pay $16,000 in costs in family law matter BY KENDYL SEBESTA Law Times can grant motions for questioning in family law cases. Writing in Durbin v. Medina, T Superior Court Justice Heather McGee reversed an earlier de- cision 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 law- yer with a family law practice in Oakville, Ont., originally ap- peared before Gilmore on Jan. 4 in a divorce proceeding involv- ing 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 parent- ing plans will be reviewed and as- sessed by the assessor. None of the minor irritants listed by the father as a topic for questioning are nec- essary to a determination of the children's best interests." McGee then went on to ques- tion Durbin's motives. "Mr. Durbin's counsel rests heavily on Mr. Durbin's need to test the cred- ibility of the mother," she wrote. "But the proposed topics are large- ly de minimus, personal to Mr. Du- bin 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 un- derstood the material on the mo- tions. Following argument, she ad- dressed the respondent's solicitor, indicating that despite her most able argument, since the parties were diametrically in opposition in what they swore in their affi- davits, she could see no way that a judge would be able to deal with the matter effectively unless ques- tioning took place. "Thus, I was certain the re- sult was a foregone conclusion. January 25, the matter returned before Justice McGee. It is an he Ontario Superior Court has delivered an unusual decision that places a limit on when it 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 liti- gants 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 oſten follow the Rules of Civil Procedure closely, they deviate from each other spe- cifically in motions for questioning to protect a system oſten 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 Pro- cedure and family law rules in this area. The deviations are there because there are a lot of self-rep- resented litigants in family court and allowing an unrepresented litigant to come up against a rep- resented one in that way would be seen as unfair." Abbott notes McGee's deci- sion to award significant costs also highlights an important and dif- ferent 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 oſten 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 mo- tions for questioning to be award- ed in circumstances like this." But Brian Galbraith of Gal- braith Family Law Professional Corp. in Barrie, Ont., says placing a limit on which motions for ques- tioning are successful and ensur- ing the practice is rare in family court serve to protect both sides in sensitive family matters. "Divorce is inherently emo- tional," says Galbraith, who adds he retained counsel in his own di- vorce several years ago despite be- ing 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 oſten grant motions for questioning precisely to pro- tect such litigants. "The problem with the unrep- resented in court from the judi- cial point of view is that our court system best functions with two strong advocates playing their role well. When parties are unrepre- sented — so don't know the rules and don't present the proper evi- dence — the judges can't do their best work." The issue, then, is a challenge Expand your skills. Enhance your future. Ensure your success. ACC's Corporate Counsel Institute Canada Sessions will cover: Faculty: Executive Vice President and General Counsel, Royal Bank of Canada Senior Vice President, Legal, Regulatory and Government Affairs, Capital Power Corporation Executive Vice-President and General Counsel, BMO Financial Group Cheryl Foy, General Counsel, ViXs Systems, Inc. Vice President and General Counsel, Xerox Canada 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 Isen- berg acted as counsel on a per diem basis in the matter. 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Offer not valid in conjunction with any other offer from Carswell and Canada Law Book. www.lawtimesnews.com Court rejects lawyer' s bid to question wife

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