Yukon Court of Appeal orders rehearing of family dispute due to procedural fairness concerns

In a recent family law case, the Yukon Court of Appeal allowed an appeal of orders made during a summary trial upon finding a denial of procedural fairness on the part of the father, who was self-represented.

The parties in this case were in a common-law relationship from March 2010 to October 2018. They had two children together. In December 2020, the mother initiated a family law action. A series of applications followed relating to issues concerning the children and property division.

In October 2022, a case management conference resulted in an order scheduling the mother’s summary trial application for Dec. 5, 2022. The father was not informed that the hearing would be a summary trial. The transcript of that conference also did not mention a summary trial.

Subsequent case management conferences in November 2022, December 2022, and January 2023 further contributed to the father’s confusion. The November 2022 conference “released” the Dec. 5, 2022 hearing date.

The father interpreted this to mean that the upcoming Jan. 18, 2023 hearing would not be a summary trial. Throughout the conferences, the father repeatedly referred to the upcoming proceedings as an “application” and not as a “summary trial.” The court and opposing counsel did not inform him otherwise.

On Apr. 11, 2023, a summary trial of the parties’ applications took place before the Supreme Court of Yukon. The hearing culminated in 39 specific orders relating to the care of the parties’ children and the division of their assets and debts.

The father wanted to set aside the orders made during the Apr. 11 hearing. He alleged procedural unfairness on the basis that he did not know that the hearing would be a summary trial.

Rehearing ordered

In L.K. v. D.W.D., 2024 YKCA 11, the Yukon Court of Appeal allowed the appeal of the father, set aside the orders made during the Apr. 11 hearing, and remitted the matter to the Yukon Supreme Court for a rehearing of the parties’ applications.

The failure to provide the father with clear notice that the Apr. 11 hearing would proceed as a summary trial, coupled with the fact that the father was self-represented, amounted to a breach of procedural fairness, the appeal court ruled.

The mother's application materials, the case management conferences, opposing counsel, and a trial coordinator did not make the summary nature of the hearing explicit, the appeal court noted. His misunderstanding was never corrected, the appeal court said.

During the Apr. 11 hearing itself, the father realized only after the hearing was well in progress that it was a summary trial, the appeal court found. The hearing judge acknowledged that the summary trial would result in final orders, which conflicted with the father's understanding that he was seeking interim relief, the appeal court added.

The appeal court rejected the mother’s argument that the outcome of the hearing would have been the same regardless of the procedural fairness issue. The appeal court cited the principle that a breach of procedural fairness generally rendered a decision invalid, regardless of the likely outcome.