The April 4 Saskatchewan Court of Appeal ruling in J.L. v T.T., 2024 SKCA 38, centred on parenting and child support disagreements between the father, J.L., and the mother, T.T. They share one child — identified in the appeal decision as B.L.
At both the trial and appeal, J.L. represented himself while T.T. was armed with counsel.
J.L. and T.T. began their relationship in Saskatoon, in 2018. At the time, J.L. worked at a car dealership and T.T. was the stay-at-home mom of two boys. J.L. and T.T. never lived together, but T.T. became pregnant in late 2018. J.L. and T.T. broke up in April 2019. Baby B.L. was born a short time later.
Not long after B.L.’s birth, J.L.’s mother travelled to Saskatoon from her home in Regina to help her son with the new baby. During this time, baby B.L. was being shuttled between J.L.’s and T.T.’s homes, but most of the child’s time was spent at J.L.’s.
Tensions soon began to mount: T.T. felt J.L. and his mother were “overbearing, controlling and unwilling” to give her the space she needed to bond with her child. On the other side, J.L. and his mother saw T.T. as a disengaged, ill-equipped, unreliable parent. J.L. also accused T.T. of using drugs before, during and after her pregnancy.
At one point, J.L. moved to Regina for work and to receive help raising B.L. from both his parents, who would help transport the child to see T.T. However, these travel arrangements also became contentious.
The disagreements continued to mount and parenting arrangements further deteriorated — thus resulting in more court action and contested proceedings.
The case went to trial at the province’s King’s Bench, where J.L. represented himself, including in the questioning and cross-examining of witnesses.
Among other things, the trial judge ruled that baby B.L. would live primarily with T.T. and that J.L. would have “extended parenting time on specified weekends and holidays.”
At appeal, J.L. argued the trial judge “was biased against him” and “made several errors that affected her bottom-line conclusions respecting both parenting and child support.”
In the end, Appeal Court Justice Jeffery Kalmakoff, with Justices Neal Caldwell and Jillyne Drennan in agreement, found J.L.’s allegations of bias had no merit. However, Justice Kalmakoff found the trial judge “failed to discharge her duty to assist J.L. as a self-represented litigant” in several ways.
Specifically, the judge wrongly restricted “the types of questions that J.L. was permitted to ask in direct examination of his witnesses,” provided him with inaccurate information when it came to the scope of cross-examination and inappropriately restricted his cross-examination of T.T.’s witnesses.
“As a result of these errors, J.L. was prevented from leading evidence that was relevant to the issues at play in the parenting aspect of the trial and from effectively challenging T.T.’s credibility,” found Justice Kalmakoff, noting that while judges must not “tilt the playing field” during trials involving self-represented parties, they are required to ensure fairness to all participants.
“Where one or more of the litigants in a civil proceeding is self-represented, properly discharging this duty may require a trial judge to provide some level of assistance or accommodation so as to ensure that a self-represented party has a fair opportunity to present a case to the best of their ability.”
In this case, the trial judge’s mistakes “were so significant that it cannot be said that J.L. had a fair opportunity to present his case.”
Anna Singer, family lawyer
“It is likely very difficult for judges to strike the right balance between providing adequate assistance to self-represented litigants and assistance that is unfair to the other party,” said Singer, a lawyer with Saskatoon’s Scharfstein LLP. “With the increase in self-represented litigants in civil proceedings, especially in family court, it is increasingly important for trial judges to strike that balance so that the process remains fair for all parties.”
Singer said the Appeal Court in this case explained that a trial judge “must provide some level of assistance or accommodation to ensure the self-represented party has a fair opportunity” to present their case.
“The Court of Appeal said that trial judges are not obligated to compensate for the layperson’s lack of legal training. However, they must do what is necessary to provide a fair and impartial hearing for both parties and to ensure that a self-represented litigant is not unfairly disadvantaged by that lack of familiarity with trial process.”
Law360 Canada did not reach out to T.T.’s lawyer, Davin Burlingham, as he is currently under interim suspension by the Law Society of Saskatchewan. A law society spokesperson said Burlingham’s suspension is not related to this case.
If you have any information, story ideas or news tips for Law360 Canada, please contact Terry Davidson at t.davidson@lexisnexis.ca or 905-415-5899.