An adjournment may be requested by a party to litigation in order to postpone a legal proceeding. However, judges can decide whether or not to grant an adjournment as they are responsible for the processing of trials. When exercising their discretion, judges need to balance the interests of the involved parties. It is important that adjournment requests are made in good faith, as judges will consider any prejudice to a party that may result from an adjournment.
This blog will explore adjournment requests in a variety of scenarios with reference to recent case law to highlight important considerations and points of awareness for parties involved in family law litigation.
In O.M. v. S.K., the respondent requested an adjournment of the applicant’s motion. The respondent changed counsel on June 1st and the firm was aware of the parties’ motion that was already scheduled for June 11th. On June 2nd, after the applicant had served motion documents to the respondent, the respondent sought an adjournment asking for the motion to be adjourned until June 25th. In support of her request, she noted that her counsel was no longer available to attend to the motion, and that for medical reasons, she was unable to respond to the motion or to instruct counsel.
In this case, the Court explained that in family proceedings, the best interests of the child should be considered when deciding whether to grant an adjournment. In this case it was found that the adjournment of the applicant’s motion would not be in the interests of justice. The respondent unilaterally left the matrimonial home with the parties’ daughter and the applicant had not had any parenting time with the child since. The respondent had made an allegation to the police about the applicant’s conduct, which led to the involvement of the Children’s Aid Society, but there had not been any further actions taken regarding the applicant’s parenting. The judge noted that the day after the alleged incident, the parties resolved all outstanding parenting issues, which provided joint decision making over their daughter. During this time the respondent did not raise the serious allegation that she now made against the applicant. For the Court, the respondent’s behaviour in signing minutes of settlement was at odds with her allegation.
In Becker v. McGrath, the Court held that if a parent is wrongfully withholding contact to a child “justice must be done sooner rather than later.” In O.M. v. S.K, the adjournment would have prejudiced the applicant and the child. There was also concern that an adjournment would reward the respondent for unilaterally withholding the child. The consequence of an adjournment would be to extend, for a further two weeks, the amount of time the applicant would not see his daughter which would increase “the risk of harm to the father-child bond.” The medical evidence was also lacking detail and did not support an adjournment. The judge noted that the applicant was able to instruct counsel after her request for an adjournment was opposed. On the issue of the unavailability of the respondent’s counsel, the Court noted that details were not provided and that the unavailability was not cited in the initial letter to the Court requesting the adjournment. Instead, it was felt that the unavailability was an afterthought that was being used to support the adjournment request.
In Sharma v. Sharma, the applicant mother brought a motion for summary judgment that would resolve parenting, equalization, and support issues. The father resided in Trinidad and Tobago and opposed the motion and sought an adjournment. The judge explained that an adjournment request involves the exercise of discretion where “the court balances the interests of each party and the administration of justice in the orderly processing of cases on their merits” and “the discretion must be exercised judicially and fairly”. In Igbinosun v. Law Society of Upper Canada the Ontario Court of Appeal set out a number of factors that should be considered in evaluating an adjournment request. The Court stated that:
“Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel, and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.”
In Sharma v. Sharma, the judge noted that the father met a number of the factors for refusing an adjournment which could be distilled into two primary grounds. The first was the prejudice that the mother would face if the motion was not heard in a timely manner, since if the matter was delayed any further the court might lose the jurisdiction to deal with spousal support. There was also the possibility of further prejudice if the Trinidad court made an order regarding parenting or decision-making over the parties’ child that may be contradictory or that the father might use to “pre-empt an Ontario order.” The second ground arose from the father’s blameworthy conduct as he failed to meet his obligations and used delay as a tactical advantage. In assessing the possible loss of jurisdiction, the judge noted that if the proceeding was adjourned long enough it could allow the father to attempt to obtain a divorce in Trinidad. If that occurred, the Ontario courts would lose jurisdiction to deal with spousal support. The judge found that the extra time an adjournment provided would enable the father to continue his attempt to obtain a divorce in Trinidad that dealt with parenting matters in a country where the child did not reside and this would be prejudicial to the mother. Moreover, the father did not provide any evidence that he had withdrawn parenting and child support issues from the Trinidad courts, despite the judge’s request.
The father’s blameworthy conduct also counted against his request for an adjournment. In D.B.S. v. S.R.G., the Supreme Court of Canada referred to “blameworthy conduct” as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support.” Justice Kurz found there was no reason to avoid considering blameworthy conduct in a request for an adjournment. In this case, the father had not paid any child support despite repeated requests by the mother. The father had a number of excuses for his failure to do so, pointing to his residence in Trinidad, the state of his finances, logistics, and currency conversion rules. However, the judge did not accept that they genuinely prevented his ability to provide support. Additionally, he did not provide any disclosure of his income despite requests and court orders that he do so. There had been efforts to accommodate the father’s participation, but Justice Kurz found his behaviour was strategic and “aimed to thwart the mother’s claims in Ontario.” In these circumstances, it would be unfair to allow a party who consistently failed to meet their obligations as a litigation tactic to benefit from their conduct. Thus, the mother was entitled to proceed with her motion.
While judges have discretion to grant or refuse an adjournment, there are a range of considerations they will look to, including the best interests of the child. There must be legitimate grounds for an adjournment and not simply an attempt to delay the proceeding. Furthermore, courts will take note where parties may not be acting in good faith, particularly if they have failed to meet their existing obligations.
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