“An important function of the court is to ensure that the trial procedure is fair and balanced so that parties are able to fairly advance their positions and obtain a judgment based on the merits of the case. It is not appropriate for a trial judge to simply swear in the witness and sit back and listen. However, it is equally important that the trial judge maintain a neutral and impartial stance, both in appearance and actuality: Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at paras. 149-51. There is sometimes a fine line between ensuring that the key evidence is before the case and constructing the case. I was alert to not crossing that line. It is ultimately up to the parties to determine what positions they will take and how they wish to advance those positions.
The Court of Appeal has emphasized this role in the context of trials where one or more litigant is self represented. The trial judge is the gatekeeper and controls the court process.
The court is instructed by the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons, 2006 (the “Principles”). The Principles provide guidance to trial judges, and also explain the duties of self-represented litigants to become familiar with the legal process with which they are engaged, to prepare their own case, and to be respectful. The Supreme Court of Canada in its decision, Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4, endorses the Principles.
I adopted the following guidelines in presiding over this trial:
(a) Explained the process and handed out a document entitled “Ontario Superior Court of Justice: Overview of the Trial Process” (marked as Exhibit A);
(b) Inquired as to whether both parties understood the process and procedure;
(c) Provided information about the law and evidentiary requirements (including providing excerpts from the Divorce Act (marked as Exhibit M)), and invited the parties to read specific leading cases relevant to the issues that they wished me to rule on while emphasizing that they should research and rely on any other caselaw they felt relevant to their respective positions;
(d) Questioned the Father and Mother once they had provided their evidence in chief to ensure that key documents were tendered by way of exhibits, and to ensure, in a neutral and impartial way, that the parties provided their basic positions concerning each of the issues advanced in their viva voce evidence. The parties were each cross-examined after I concluded my questioning: Principles, B.4; Cicciarella v. Cicciarella (2009), 2009 CanLII 34988 (ON SCDC), 252 O.A.C. 156 (Ont. Div. Ct.), at paras. 35-45;
(e) The parties were provided the weekend to prepare their respective closing submissions after receiving further direction from me.”