Fraser v Ksenych, 2022 SKCA 93

Court of Appeal for Saskatchewan Docket: CACV3920 Citation: Fraser v Ksenych , 2022 SKCA 93 Date: 2022-08-11 Between: Matthew Fraser Appellant (Respondent) And Jackie Ksenych Respondent (Petitioner) Before: Richards C.J.S., Jackson and Tholl JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Jackson On appeal from: DIV 3 of 2020 (Sask QB), Estevan Appeal heard: June 17, 2022 Counsel: Timothy Hansen for the Appellant Stephen Schuck for the Respondent Tholl J.A. I.

INTRODUCTION [ 1 ] The parties separated in 2019 and were unable to resolve the disputes that arose. As a result, a trial was required to determine the parenting arrangements for their daughter, support issues, and property division. Matthew Fraser has appealed the entirety of the trial judgment: Ksenych v Fraser (1 October 2020) Estevan, DIV 3 of 2020 (Sask QB) [ Trial Decision ]. His main contentions find root in the fact that he was self-represented at the trial. Mr.

Fraser asserts that the trial judge erred by failing to provide him with appropriate assistance in the conduct of the proceeding and relies on several categories of alleged problems, which he argues support such a finding. He also contends that the trial judge erred by not providing sufficient reasons in his judgment addressing contradictions in the evidence and the impact of his self-representation. Lastly, Mr. Fraser points to a relatively small error in the calculation of the property division. Jackie Ksenych opposes all of the grounds of appeal, except that she agrees with Mr.

Fraser regarding this last point and accepts that an adjustment should be made to account for it. [ 2 ] For the reasons set out below, the appeal is allowed only to the extent of addressing the property division calculation error and the resultant modifications to the judgment. It is otherwise dismissed. II. BACKGROUND [ 3 ] Mr. Fraser and Ms. Ksenych began residing together in Saskatoon in 2012 and were married in 2014. They have one child, a daughter, who was born in 2012. They separated on January 4, 2019, and Ms. Ksenych and the child moved to Estevan. One month later, Mr. Fraser moved to Medicine Hat.

The two communities are over 600 kilometres apart. [ 4 ] On January 29, 2020, a petition was issued on behalf of Ms. Ksenych, who sought judgment for divorce, sole custody of the child, parenting time for Mr. Fraser, child support, spousal support, and an equal division of the family property. While an answer and a counter-petition are not contained in the appeal book, it is not disputed that Mr. Fraser opposed sole custody, sought primary residency of the child, and requested payment of child support and spousal support from Ms.

Ksenych. [ 5 ] There were several interim applications, one of which arose out of Mr. Fraser’s refusal to return the child to Ms. Ksenych at the conclusion of one period of his parenting time. Ultimately, an interim order was granted by Robertson J. on June 12, 2020, providing for, inter alia , joint custody and determining that Ms. Ksenych’s home would be the child’s primary residence. The child lived primarily with Ms. Ksenych in Estevan continuously from January 4, 2019, until the commencement of the trial in March of 2021. During that period, Mr.

Fraser had frequent parenting time with the child in Medicine Hat. While the Trial Decision was under reserve, the trial judge granted an interim order on June 23, 2021, setting out approximately equal parenting time for July and August of 2021. III. TRIAL DECISION [ 6 ] The trial commenced on March 17, 2021, and took place over the course of three days. Ms. Ksenych was represented by counsel, whereas Mr. Fraser was self-represented. Mr. Fraser received permission for his sister, Lisa Fraser, to sit at the counsel table to assist him with various aspects of the trial, not including the examination of witnesses.

Ms. Ksenych testified on her own behalf and called four other witnesses, consisting of a sergeant from the Estevan Police Service, a school counsellor, the child’s family doctor, and Ms. Ksenych’s sister. Mr. Fraser also testified on his own behalf, in addition to calling his common-law spouse and Ms. Ksenych’s aunt. Numerous documents were tendered by each party.

[ 7 ] The trial judge commenced his written reasons by identifying the parenting arrangements as the main issue. Ms. Ksenych wanted the child to continue living with her in Estevan and Mr. Fraser wanted her to reside primarily with him in Medicine Hat. The trial judge provided a brief background, reiterated his obligations in relation to a self-represented person, examined the reasons why he permitted Ms. Fraser to sit at the counsel table, and described the nature of Ms. Fraser’s assistance during the trial.

He then set out the issues and commenced his analysis of parenting. [ 8 ] After an examination of the relevant portions of the Divorce Act , RSC 1985, c 3 (2d Supp), and jurisprudence that discussed the well-established principles related to the best interests of a child, the trial judge turned to a lengthy examination of the evidence and made comprehensive findings of fact. Without attempting to be complete, I would summarize his main findings regarding parenting as follows: (

a) Mr. Fraser and his sister mounted an unwarranted, exaggerated, and relentless campaign against Ms. Ksenych and her fitness as a parent, particularly with regard to alleged abuse and neglect, notwithstanding an absence of evidence supporting those allegations. They did not act in good faith and, working in concert in a single-minded manner, went to unreasonable and unnecessary lengths to falsely malign Ms. Ksenych, her family, and anyone else who did not immediately act in accordance with their unfounded suspicions.

They continued their crusade – including during the trial – even when the evidence contradicted their allegations. Their reports to various child protection agencies and police services were without foundation and were motivated by Mr. Fraser’s selfish and misguided desire to discredit Ms. Ksenych. His relentless pursuit of unfounded allegations caused the trial judge grave concern with regard to Mr. Fraser’s willingness to support the child’s relationship with Ms. Ksenych. (

b) There was no evidence of any abuse or neglect of the child while she was in Ms. Ksenych’s care. To the contrary, the evidence obtained from multiple sources clearly refuted these allegations. (

c) The child is well-adjusted, performing well in school, has friends and extended family support in the Estevan area, and is generally doing very well in Ms. Ksenych’s primary care. Ms. Ksenych has diligently addressed the child’s needs. (

d) Frequent travel between Estevan and Medicine Hat, a 14-hour round trip, is hard on the child and is “too much”. Mr. Fraser’s inability to appreciate the impact of travel on the child is relevant to his willingness to meet her needs. (

e) It is in the child’s best interests to reside primarily with Ms. Ksenych in Estevan. [ 9 ] As a result of his factual findings and analysis, the trial judge ordered joint decision-making authority – with a final say to Ms. Ksenych on any material decision regarding the child’s health or well-being; primary residency with Ms. Ksenych; parenting time for Mr. Fraser for one weekend per month, along with equal shared holidays; the method by which the exchanges would be accomplished; and a prohibition on Mr.

Fraser’s sister attending the child’s health-related appointments. [ 10 ] The trial judge moved on to determine Mr. Fraser’s and Ms. Ksenych’s incomes, set ongoing s. 3 and s. 7 child support, and ordered retroactive child support. He then analyzed each parties’ claim for spousal support and found that neither spouse was entitled to such support. [ 11 ] Lastly, the trial judge examined the division of family property.

He determined that the value of the property should be divided equally, as of the petition date, subject to the application of the equitable considerations that permitted him to take the parties’ debts into account. The trial judge accepted Mr. Fraser’s assertion that Ms. Ksenych’s student loan debt should not be included in the calculation. After completing his calculations, he ordered Ms. Ksenych to pay an equalization payment to Mr. Fraser for the non-taxable family property in the amount of $9,800, and Mr. Fraser to transfer $20,668.85 from his RRSP account to Ms.

Ksenych’s RRSP account. [ 12 ] Costs of the trial were awarded to Ms. Ksenych, fixed in the amount of $14,000. The trial judge ordered that this amount be set off against the equalization payment. This resulted in an order that Mr. Fraser pay Ms. Ksenych a net amount of $4,200 with regard to these two items. [ 13 ] The trial judge neglected to address the issue of divorce in the Trial Decision , so he rendered a supplemental fiat on October 8, 2021, which granted judgment for divorce. On appeal, Mr.

Fraser challenged the entirety of the trial judgment, but conceded that he was not seeking to have the granting of divorce set aside. IV. ISSUES [ 14 ] The following issues arise in this matter: (

a) Did the trial judge fail in his obligation to ensure a fair trial occurred in light of Mr. Fraser’s self-representation? (

b) Did the trial judge err in not providing sufficient reasons addressing contradictions in the evidence and the impact of Mr. Fraser’s self-representation? (

c) What adjustment is required to the judgment arising out of the property division calculation error? [ 15 ] While Mr. Fraser’s notice of appeal alleged other errors, his factum and oral argument limited the appeal to these issues. V. ANALYSIS A. Fair process

[ 16 ] Mr. Fraser contends that the trial judge erred in multiple ways during the trial. Overall, he asserts the trial judge did not provide adequate assistance to him as a self-represented litigant. As specific examples, Mr. Fraser argues that the trial judge failed to address Ms. Ksenych’s disclosure obligations, prevented him from presenting his evidence, permitted the filing of documents by Ms. Ksenych without his consent, unfairly structured the closing arguments, and improperly considered an incomplete exhibit. Mr.

Fraser suggests that the trial judge violated the audi alteram partem rule by not giving him a fair opportunity to respond to the issues and meet the case presented by Ms. Ksenych. He does not rely on these as stand-alone grounds of appeal but, instead, alleges that he did not receive a fair process based on the cumulative effect of these issues. [ 17 ] Ms. Ksenych disputes all of these assertions. She argues that the trial judge provided substantial assistance to Mr. Fraser throughout the proceeding and provides numerous examples of such aid. Ms.

Ksenych submits that the trial was fair. [ 18 ] A trial judge’s determinations regarding the management and conduct of a trial, including the level of assistance to be provided to a self-represented party, are discretionary decisions made to ensure that the trial is fair to all participants: R v Potoreyko , 2022 SKCA 71 at para 10 ; Bloomfield v Halfyard , 2020 MBCA 73 at para 8 [ Bloomfield ]; R v Pelletier , 2019 SKCA 113 at para 51 , 381 CCC (3d) 487; and Dewing v Kostiuk , 2017 MBCA 22 at paras 15 and 22 , [2017] 6 WWR 717.

Discretionary decisions attract a deferential standard of review: Kot v Kot , 2021 SKCA 4 at para 20 , 63 ETR (4th) 161 [ Kot ]. [ 19 ] An alleged failure of a trial judge to properly assist a self-represented litigant most frequently arises in criminal appeals.

The role of the judge at a criminal trial, when an accused person is self-represented, was described by Kalmakoff J.A. in R v Cathcart , 2019 SKCA 90 , 380 CCC (3d) 357 [ Cathcart ]: [76] … While it is clear that an accused who decides to proceed without the assistance of a lawyer cannot, after the fact, attack a conviction on the basis that he or she did not have representation as effective as what might have been provided by counsel, a trial judge has an obligation to ensure that a trial is fair and that there is no miscarriage of justice … .

Part of a trial judge’s duty in that respect is to render some assistance to those who are self-represented so that defences available to such individuals are presented with full force and effect … . [77] Deciding how much assistance a judge should give to a self-represented accused person is an exercise in discretion. A trial judge is not counsel for the accused, and cannot provide assistance of the sort that counsel would furnish, but there is a duty … to ensure that the accused has a fair trial. This duty is circumscribed by a standard of reasonableness … .

What this standard requires from a trial judge will vary from case to case. It will depend on the dynamics of the trial in question, the circumstances of the particular accused, and the nature of the charges … . See also R v Wilde , 2022 SKCA 74 [ Wilde ] at paras 18–21 . [ 20 ] However, the reasoning from Cathcart and Wilde does not directly apply when considering a litigant’s assertion that they did not receive a fair trial adjudicated by an impartial arbiter in a civil trial.

The duty of a trial judge to ensure fairness to an accused person in a criminal matter emanates from the Charter and from the principles related to a miscarriage of justice.

As a result, this concept does not precisely translate to a civil matter. [ 21 ] Turning to self-representation in a civil matter, this Court in Stephens v Canadian Imperial Bank of Commerce , 2021 SKCA 155 , in a per curiam decision, discussed some of the issues that arise from such a circumstance: [59] It is correct to say that judges in civil proceedings have an obligation to ensure that a hearing is fair to all parties—including those who are self-represented—and that this obligation must be borne in mind when exercising the discretion to relieve a party from strict compliance with the Rules … .

However, while courts may sometimes properly afford greater leeway to self-represented litigants on procedural matters to ensure that procedural rules are not unjustly used to hinder their legal interests, this does not mean that self- represented litigants are entitled to a free pass in every respect. Self-represented litigants have a responsibility to familiarize themselves with the relevant legal principles and procedures pertaining to their case and to make reasonable efforts, in a manner consistent with their abilities, to comply with the Court’s rules … .

This sentiment is echoed in Rule 1-2(2) of the QB Rules , which states that “the rules govern all persons who come to the Court for resolution of a claim, whether the person is a self-represented litigant or is represented by a lawyer”. [ 22 ] In the context of a family law trial, the Manitoba Court of Appeal recently expressed a similar sentiment in Bloomfield : “As for whether the judge failed to adequately assist the mother, a judge is required to provide some assistance and accommodation to ensure that a self-represented litigant has a fair opportunity to present a case to the best of his or her ability.

However, a judge cannot become an advocate for a self-represented litigant or provide legal advice …” (at para 9). [ 23 ] In Sydor v Kehough , 2019 MBCA 119 , reconsideration refused, 2020 MBCA 20 , Simonsen J.A. described a trial judge’s obligations to a self-represented family law litigant as follows: [46] … I understand the difficulty in presenting a case like this, but the jurisprudence makes clear the scope of the duty of a judge to a self-represented litigant and the obligations of such a litigant. … A trial judge must provide some assistance and accommodation to ensure that a self-represented litigant has a fair opportunity to present a case to the best of his or her ability.

However, a trial judge cannot become an advocate for a self-represented litigant or provide legal advice. Self-represented individuals have a responsibility to “familiarize themselves with the relevant legal practices and procedures pertaining to the case and to ‘prepare their own case’” ([ Dewing v Kostiuk ] at para 21). [ 24 ] In Ontario, the same principles have been accepted. In Gionet v Pinquie , 2018 ONCA 1040 , 22 RFL (8th) 55, Harvison Young J.A. stated the following: [30] The duty of a trial judge to assist self-represented litigants was canvassed most recently by this court in Dujardin v.

Dujardin Estate , 2018 ONCA 597 : [I]t is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom

procedure and the rules of evidence: Davids v. Davids (1999), (ON CA), 125 O.A.C. 375, at para. 36. However, a trialjudge’s duty to assist has limits. It does not entail bending the rules of evidence in an attempt to compensate for the lack of representation.The fair trial rights of opposing parties must be respected. As Brown J.A. said in Sanzone v.

Schechter, 2016 ONCA 566, 402 D.L.R. (4th)135, at para. 22: “A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidenceand substantive law whether the plaintiff is represented by counsel or self-represented”. [31] In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate theirunfamiliarity with the trial process, in order to permit them to present their case … . [25] At the trial level in this province, King v King, 2021 SKQB 201, examined a trial judge’s obligation to a self-represented partywho failed to prepare or adduce material evidence.

In commenting on this issue, Megaw J. reiterated the requirement that the court remainimpartial, not provide legal advice, and not go as far as guiding the presentation of a self-represented party’s case: also see Banilevic vCairney, 2020 SKQB 25 at paras 19–29. [26] Lastly, the Canadian Judicial Council has set out guidance on this issue in its Statement of Principles on Self-RepresentedLitigants and Accused Persons (Ottawa: CJC, 2006) online: 2006 CanLIIDocs 691. Included in that document is the following statementregarding the promotion of equal justice (at 4): B.

PROMOTING EQUAL JUSTICE STATEMENT: Judges, the courts and other participants in the justice system have a responsibility to promote access to the justice system for all personson an equal basis, regardless of representation. PRINCIPLES: 1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfairdisadvantage to self-represented persons. [27] Self-representation at trial creates a complex situation for trial judges.

They must provide adequate assistance to the self-represented person, while being cautious to never cross the line from that of impartial adjudicator into the realm of offering assistance in amanner that is unfair to the other party. A judge cannot offer legal advice. It is not for the judge to make the case for self-representedlitigants or to take charge of their marshalling of evidence and arguments.

Instead, trial judges must help the self-represented party tounderstand the general nature of the issues in question and guide them through the procedures that are used at a trial to present evidenceand arguments to address those issues. However, such assistance and guidance does not transform the judge into an advocate or a directorof a self-represented party’s litigation. That primary responsibility always remains with the litigant. [28] While this discussion of the duty a trial judge owes to a self-represented person in a civil matter provides an anchor from whichto examine the issue raised by Mr.

Fraser, it does not directly answer the question of what analysis should be applied by a court when anappellant asserts that they did not receive a fair trial as a result of their self-representation. In my view, the necessary proposition is simplyput. For self-represented litigants in a civil matter, a trial judge has an obligation to provide assistance in accordance with the principles setout in the cases, commentary, and analysis above in order to provide a fair process.

Nevertheless, a trial judge’s determinations about thesteps to be taken to assist a self-represented party to ensure that such a process occurs are highly discretionary. Given the wide variance incircumstances in which a claim of this sort might be made, it is not possible to lay down precise rules. However, it can be said thatappellate intervention is only justified if a trial judge exercised their discretion in a manner that, in light of all of the relevantcircumstances, failed to give a self-represented litigant a fair opportunity to present their case. [29] With this discussion as a backdrop, I turn to Mr.

Fraser’s assertions that the trial judge failed in addressing the duty owed tohim as a self-represented litigant. While I will analyze each of the specific allegations somewhat separately, it is their cumulative effectwhich I must consider when determining whether the trial represented a fair process. I note that Mr. Fraser did not seek to introduce freshevidence on this appeal describing the effects of any of the alleged problems or explaining what he would have done differently had thetrial been conducted in a different manner. As a result, any concerns raised by Mr.

Fraser must find their footing on the face of thetranscript or in the Trial Decision. 1. Ms. Ksenych’s disclosure obligations [30] At the commencement of the trial, Mr. Fraser informed the trial judge that he had not received all of the documents that he hadrequested from Ms. Ksenych. The following excerpts from the transcript address this issue: MR. FRASER: Okay. Yeah. Just as far as the financial issues go, so that’d be, like, the property division and child support, spousalsupport, I’ve yet to receive all of Jackie’s financial information.

There’s quite a bit of stuff that I haven’t received -- THE COURT: Okay. MR. FRASER: -- that I wanted to, kind of, go through so I can see where everything is at myself. THE COURT: Well, what financial information is that that you want? MR. FRASER: Her T4 of 2020, T4A of her 2020 CERB, bank statements of from date of marriage -- … THE COURT: And -- all right. And when did you ask for those?

MR. FRASER: Back in January 8th. … MR. FRASER: There’s bank statements on date of separation, RRSP or pension on date of marriage, the RRSP or pension on date of separation. Let’s see. Statements of credit cards, bank loans, and debts on date of marriage, so for -- same thing with the date of separation; income of the other person in her household, I -- as I provided that to them, as well, so -- and the opening statement on her student loans. THE COURT: So you’ve asked for that material in January 8th, and you say you’ve not received that? MR. FRASER: Yes. THE COURT: Okay. Maybe I’ll just … address Mr.

Schuck on that. Am I going to be seeing some of that material coming out in trial, or - - Submissions by Mr. Schuck [Ms. Ksenych’s counsel] MR. SCHUCK: Yes. There’s -- a lot of it has been provided with the financial statement, and -- and actually have -- receive a Notice to Disclose, and we provided a response to Notice to Disclose. So most of the information that was requested in the Notice to Disclose should be there, and then there was follow-up requests for additional materials that were made by Mr.

Fraser, and on -- I mean, it’s going to be difficult for us to get bank statements for banks that have -- accounts that have been closed in 2014 or earlier, right? So, I mean, given the time that was provided, it just isn’t practical to get them. THE COURT: Okay. ’Cause I guess what I’m looking for is -- I want to be able to address each of these from time to time, and there’s -- we -- there’s one way we can do it, although I’m not really inclined to do it this way, is we could say, well, fine, can you -- maybe Mr.

Schuck can then -- if we take a break right now, he can say, here’s where some of the material is, and here’s where some of the material isn’t in the stuff you’ve already received. And then if there’s some outstanding items, we can deal with that. But the other way to look at it is commence the trial, we’re going to hear Mr. Schuck’s case, he’s going to provide the information -- or file exhibits and information, and if there’s some other outstanding information that comes up during your cross-examination or during part of your case, we can then address it on an issue-by-issue basis.

And, quite frankly, I’m inclined -- now, I’m going to hear from both of you, but I’m inclined to start the trial because I hear Mr. Schuck saying you’ve been given substantially most of that material, and then if there’s some material that’s not there, then we look to, well, do I need it, and is it going to help me decide issues and that? To be honest, bank statements from the start of the marriage, probably not going to help me. I’m more interested in the here and now and moving forward. But we can deal with that. So what I’m proposing, and maybe I’ll start with you, Mr. Fraser, that we start with the trial.

If there’s some material that you find that you need -- need to take a look at, we can discuss it and, like I say, probably even have a discussion as to whether or not it’s relevant. MR. FRASER: M-hm. THE COURT: And then address the issue that way ’cause we have three days set for trial. I’m -- it’s very important that we get this going and that we have it completed in three days. And the problem is I’m from Regina, and I believe I’m back here for a few days in May, and after that, I’m not sure if I’m back here till the fall.

So I would hate to have to say, well, we’re going to adjourn the trial or we’re going to find another date or -- because I realize this has been going on for a while and that parties want this to be over, and so I want to make sure, even if we have something close to perfect, and it’s not perfect, that we get it addressed in the time that we have available, ’cause otherwise we’ll probably do more harm to the parties by stretching it out for another six, eight, nine months or whatever. So, Mr.

Fraser, are you okay with starting the trial and dealing with if there’s a document you need in the course of argument or something like that or in the course of presenting your case, we can then -- we can discuss it at that stage? MR. FRASER: Yes. [ 31 ] From this discussion, it is evident that Mr. Fraser requested additional disclosure and had received some, but not all, of the documents by the date the trial commenced. The trial judge considered the fairness of this situation, and the relevance of documents, such as the older bank statements, and asked Mr.

Fraser if he were okay to proceed with the trial on the basis that any disclosure issues could be addressed as they arose in the evidence. Mr. Fraser agreed that he was content to do so. [ 32 ] It appears that the issue of disclosure surfaced at only two subsequent points in the trial. The first occurred during Mr. Fraser’s testimony, found in the transcript at page T351, when he queried if Ms. Ksenych’s MasterCard debt was properly included because the account was opened two months prior to separation and he was unaware of this debt. He testified that he did not have the 2019 statements for this credit card.

This conforms with Mr. Fraser’s position at trial that the property and debts should be valued as of the date of separation. Of course, as correctly found by the trial judge, valuation and division of family property as of the date of separation is not one of the two options available under s. 2 and s. 21 of The Family Property Act , SS 1997, c F-6.3 . The trial judge chose to use the petition date as the date at which to value the property. In applying the equitable consideration regarding existing debt, he used that same date.

The MasterCard statement that aligned with the petition date was tendered as Exhibit P-13 and was available to Mr. Fraser. As such, this specific concern had no relevance to the final determination of property division. [ 33 ] The second point at which Mr. Fraser raised disclosure issues is found in the transcript at page T352, when he indicated that he had not received any income information for other people residing in Ms. Ksenych’s household. This information might have been relevant to a claim for undue hardship by Mr. Fraser or, perhaps, in relation to the veracity of Ms.

Ksenych’s needs as a component of her claim for spousal support. However, Mr. Fraser’s claim for undue hardship was ill-conceived and could not have been made out and Ms. Ksenych’s request for spousal support was dismissed. Any perceived lack of disclosure on this front therefore had no effect on the trial.

[ 34 ] I further observe that Ms. Ksenych did not claim any exemptions and was unsuccessful in having her student loan included as a debt in the property division calculation. As such, it is difficult to see how the alleged disclosure problems could have affected trial fairness. [ 35 ] Mr. Fraser did not bring an application in advance of trial seeking compliance with disclosure. He was familiar with the process to bring such an application, having been an applicant or respondent in several interim applications. He chose to not do so. Crucially, Mr.

Fraser did not provide any information to this Court regarding how the alleged lack of disclosure affected the resulting judgment. He merely logged this as a potential problem without sufficiently explaining how it has any significance in relation to trial fairness. It appears that the necessary documents were tendered as exhibits. Given the specific quantification of the parties’ RRSPs, debts, and income that was completed by the trial judge, the required financial information was available. 2. Restrictions on, or lack of assistance in, presenting evidence [ 36 ] The trial in this matter was set for three days.

Throughout its course, the trial judge reminded the parties of this fact and his desire to finish in the allotted time. On appeal, Mr. Fraser argues that the trial judge was unduly strict in requiring completion within three days. He contends that the pressure from the trial judge had the effect of forcing him to shorten his case in order to fit it within the scheduled dates. [ 37 ] As is evident from the transcript at several points, the trial judge reminded the parties that he wanted to finish in time and discussed with them where they were in their cases and the scheduling of the witnesses.

However, at no point did he set hard time limits or demonstrate inflexibility. He did not unilaterally seek to curtail testimony, whether in-chief or during cross-examination, other than from a relevancy standpoint. He started court early one day in order to provide the parties with additional trial time. He bifurcated the final submissions into oral arguments on some issues and written arguments on other issues in order to provide a sufficient opportunity for proper submissions.

A full reading of the transcript does not reveal inappropriate pressure to speed up or abbreviate any portion of the evidence. [ 38 ] Mr. Fraser asserts that he was only allowed 1.5 hours at trial in which to provide his own testimony in-chief. However, the transcript does not bear this out. The trial judge did not criticize the pace of his testimony or admonish him to hurry. Indeed, the trial judge permitted Mr. Fraser to read a lengthy and detailed written parenting plan into the record during his testimony, after asking if he simply wanted to file it, because that was Mr. Fraser’s preference.

The transcript does not reveal any impatience on the part of the trial judge. At the conclusion of Mr. Fraser’s examination-in-chief, the trial judge specifically asked him if he had anything else he wished to say. Mr. Fraser answered in the negative. There is no indication that his testimony was temporally limited in any way. [ 39 ] On appeal, Mr.

Fraser did not seek to provide any evidence to this Court setting out additional oral testimony he would have given, describing other documents he would have tendered, or identifying other witnesses he would have called if he had not been, as alleged, pressured to complete the trial in the allotted three days. Further, Mr. Fraser did not raise any concerns during the trial about feeling rushed or constrained for time. [ 40 ] A bare assertion that a self-represented litigant was prejudiced, simply because a trial judge was mindful of the schedule, carries no weight.

A trial judge has an obligation to manage a trial, eliminate wasted time, and keep the proceedings moving along at a proper pace. Trial time is a scarce and valuable resource. Here, there is no indication on the face of the transcript that the trial judge was doing anything except adhering to his obligations to the parties and to other members of the public, who also require access to precious trial time. The trial judge did not arbitrarily demand strict time compliance at the expense of trial fairness.

There is no merit to the argument that concerns about efficiency trumped a fair process. [ 41 ] As a second branch of this argument, Mr. Fraser asserts that the trial judge either interfered with the filing of his documents or did not provide sufficient assistance to him in filing the evidence he wished to tender as exhibits. Again, Mr. Fraser did not apply to have fresh evidence admitted in this Court. He has not shown us which documents he would have tendered nor described the relevance of any such documents. [ 42 ] I observe that Mr.

Fraser tendered his entire pre-prepared binder of documents at trial, as Exhibit D-5, and successfully utilized and filed other documents during his cross-examinations of Ms. Ksenych’s witnesses. Additionally, he filed a large collection of medical documents as Exhibit D-4. Mr. Fraser, as the respondent at the trial, also had the advantage of observing the process of documents being tendered as trial exhibits because Ms. Ksenych’s counsel filed numerous such exhibits at the trial during the presentation of her case. At several points during the trial, the trial judge offered assistance to Mr.

Fraser with this aspect of presenting documents. Examples can be found in the trial transcript: T9.38 to T10.25, T141.10 to T142.34, T208.30 to T209.9, T215.14 to T215.30, T230.37 to T231.20, T242.23 to T245.6, T257.31 to T258.21, T312.35 to T318.5, and T322.12 to T323.10. Nowhere in the transcript is there any indication that the trial judge hindered or interfered with his ability to tender additional documents. To the contrary, the trial judge provided substantial guidance, which assisted Mr. Fraser in tendering a significant number of documents. [ 43 ] Mr.

Fraser points to the portion of the transcript when the trial judge noted that Mr. Fraser had an 18-inch high stack of documents with him. He says this is indicative of the volume of documents he had available to tender as evidence. However, this observation by the trial judge does not translate into a conclusion that Mr. Fraser had more documents that he would have filed had the trial judge properly assisted him. This Court has no information of what was contained in that collection.

It may have included the pleadings, all of the interim applications, copies of documents that were already filed, correspondence, case law, and other documents not relevant to the trial. But labelling them as such would involve the same improper speculation as would be required to determine that there were any further relevant documents in that pile. Based on what is in front of us, I am unable to conclude that Mr. Fraser had any further relevant documentary evidence to tender at the trial. [ 44 ] The appeal book contains correspondence that Mr.

Fraser sent to the Court of Queen’s Bench on April 6, 2021, in which he appears to be attempting to provide additional evidence or arguments to the trial judge. However, I note that, on the instructions of the trial judge, the local registrar emailed Mr. Fraser on July 5, 2021, with a copy to Ms. Ksenych’s counsel, specifically informing Mr. Fraser that if he wished to tender any additional evidence, he could apply to re-open the trial. Despite having significant experience with court applications, Mr. Fraser declined to do so.

[ 45 ] I cannot find any negative effect on trial fairness based on the unsubstantiated contention that Mr. Fraser was unable to effectively put his evidence before the trial judge. 3. Filing of documents by Ms. Ksenych without Mr. Fraser’s consent [ 46 ] Mr. Fraser takes issues with the trial judge’s statement, at paragraph 235 of the Trial Decision , that many exhibits related to the division of property were filed by consent. He says that he did not consent to Ms. Ksenych’s documents being tendered, and particularly not to the Property Equalization Spreadsheet. This assertion is of no consequence. Mr.

Fraser’s exhibits were filed by consent, many of which dealt with property. This alone makes the trial judge’s statement at paragraph 235 of the Trial Decision correct. With regard to Ms. Ksenych’s exhibits, his consent was not needed, because they were tendered with a proper evidentiary basis and, therefore, accepted as full exhibits. On appeal, Mr. Fraser has not challenged the actual admissibility of any of Ms. Ksenych’s trial exhibits. 4.

Structuring of the final arguments [ 47 ] The trial judge determined that he would have the parties orally present their submissions on the parenting arrangements and costs, whereas their submissions on the remaining issues would be written. While the trial judge originally was only going to hear oral arguments on the parenting issues at the conclusion of trial, he acceded to Ms. Ksenych’s request to also hear oral submissions on costs. [ 48 ] On appeal, Mr.

Fraser says that there was not a valid reason to address costs in the oral arguments and he was prejudiced by having to argue this issue without sufficient notice. This assertion can be dealt with summarily. Despite the direction of the trial judge, Mr. Fraser made comprehensive arguments on costs in his written submissions. As such, he had a full opportunity to address this issue orally and in writing. [ 49 ] Mr. Fraser also asserts that the trial judge strayed into giving legal advice to him with regard to the preparation of his closing submissions.

He appears to be arguing that the interaction among the judge and the parties regarding the structure of closing arguments resulted in the provision of legal advice. Having read the portions of the transcript where these issues are discussed, I do not agree that this occurred. There was a three-way conversation about preferences for the form of the arguments, and some direction from the trial judge to Mr. Fraser to, in his written argument, give a

summary of his position on each of the financial issues, provide exhibit references to support that

summary, and focus his submissions. However, providing this type of guidance, and seeking clear statements about positions, is not providing legal advice. [ 50 ] Lastly, under this heading, Mr. Fraser argues that it would have been better for all of the argument to have been written. I note that, initially, Mr. Fraser indicated that he wanted the entire final argument to be presented orally and to be done on the last day of trial. It is difficult to see how having oral argument on the parenting and costs issues and written argument on the remainder of the issues caused any prejudice. None is identified. 5.

Improper use of an exhibit [ 51 ] At trial, Mr. Fraser was cross-examined using an audio recording of a March 13, 2020, exchange of the child between the parties. The entire audio recording was played and it was tendered as Exhibit P-50. Mr. Fraser now asserts that this aspect of the proceeding was unfair because he was not provided with a copy of the recording or given an opportunity to respond to it. [ 52 ] The audio recording that was tendered as Exhibit P-50 was a recording that had been surreptitiously made by either Mr. Fraser or his sister.

He had previously attached it to an affidavit and tendered it on an interim application. He had provided the recording by email to Ms. Ksenych’s counsel. In short, the recording was his document. There was no unfairness in confronting him with it during his cross-examination or tendering it as an exhibit. [ 53 ] Mr. Fraser submits that a video recording existed of the same exchange and he believed it also should have been filed by Ms. Ksenych as an exhibit at trial. However, there was no obligation on Ms. Ksenych to do so. If the video recording was important to Mr.

Fraser’s case, he had ample opportunity to tender it himself. 6. Conclusion [ 54 ] Unlike some self-represented litigants, Mr. Fraser was well-prepared for trial and tendered significant evidence, both testimonial and documentary. The trial judge commented on his diligence and level of preparedness. He conducted examinations-in-chief and cross-examinations effectively and presented his own testimony in an organized manner. He had assembled his binder of documents and successfully tendered the entire binder.

He was not meek in his dealings with the trial judge and was not afraid to push back in a respectful manner in order to present his case in the way in which he desired. With these traits of Mr. Fraser in mind, it is my view that the trial judge offered the necessary assistance to permit him to address the issues and navigate through the trial. [ 55 ] At the start of the trial, the trial judge ensured that Mr. Fraser had been given the guide to conducting a trial that is provided to self-represented litigants in Saskatchewan. Mr. Fraser had received it many months prior before trial.

The trial judge described his own role and clarified that he could only take into account evidence presented at trial. He then defined all of the issues at stake in the proceeding and asked if there were any other general issues that the parties wanted to raise. Mr. Fraser did not hesitate to bring up the disclosure issue, which was dealt with in a comprehensive and respectful manner by the trial judge. No further questions were asked or clarifications sought at that stage. The trial judge also permitted Mr. Fraser’s sister to sit at the counsel table, as a Mckenzie friend , and help him.

The trial judge then provided significant assistance when needed and let Mr. Fraser run his case as he saw fit. [ 56 ] The transcript demonstrates that Mr. Fraser understood the trial process and was effective in putting forth the case he wanted to present. As the trial progressed, the trial judge provided additional direction to Mr. Fraser as necessary and sought clarifications from him regarding the purpose of certain evidence. Mr. Fraser knew what the issues were and marshalled evidence and argument to address all of them. The trial judge could not build Mr.

Fraser’s case for him, but he created the appropriate atmosphere in which Mr. Fraser had every reasonable opportunity to present it for himself. There was no violation of the audi alteram partem principle. Unfortunately for

Mr. Fraser, as opposed to focussing on the benefits of his own parenting plan, he chose to concentrate his efforts on attempts to vilify and discredit Ms. Ksenych – when the evidence did not support the existence of any valid concerns in that regard. He was free to choose that tactic, but he must also live with the consequences of having done so. [ 57 ] The trial was a fair process. There is no room for appellate intervention in relation to the discretionary decisions made by the trial judge regarding assistance to Mr. Fraser. This ground of appeal cannot be given effect. B. Sufficiency of reasons [ 58 ] Mr.

Fraser submits that the Trial Decision itself does not reveal that the trial judge was alive to the concerns regarding procedure and fairness to a self-represented litigant. He further contends that the trial judge failed to provide adequate reasons for accepting Ms. Ksenych’s witnesses’ evidence when it conflicted with his witnesses’ evidence. [ 59 ] The analysis of this issue does not present much difficulty. It is abundantly clear that the trial judge was aware of the issues that arise when a litigant is self-represented. He spent significant time explaining those issues and procedurally assisting Mr.

Fraser during the course of the trial and reiterated the framework under which he had conducted the trial at the beginning of the Trial Decision . The trial judge understood his responsibilities with regard to Mr. Fraser. Of course, the fact that one party is self-represented does not have any effect on trial deliberations. Each party is still responsible for presenting their own evidence and making their own arguments. That evidence and those submissions are not analyzed differently as a result of one or both parties being self-represented.

Substantive law is not interpreted or applied in a different way for self-represented parties than for represented parties: Dujardin v Dujardin , 2018 ONCA 597 , 423 DLR (4th) 731. It was not necessary for the trial judge to provide any additional reasons related to Mr. Fraser’s representation status as a self-represented litigant. [ 60 ] Mr. Fraser also contends that the trial judge did not provide adequate reasons for accepting Ms. Ksenych’s evidence over his evidence.

In order to be sufficient, a trial judge’s reasons must be reasonably intelligible, give an explanation to the unsuccessful party, and provide the basis for meaningful appellate review. The reasons must reveal what was decided and why. However, a trial judge is not obligated to resolve every inconsistency or comment on every piece of evidence: see Bhagaloo v M2 Construction & Development Ltd ., 2021 SKCA 168 at paras 30–40 , [2022] 3 WWR 179, and Scobie v Thiessen , 2021 SKCA 47 at paras 31–33 , 54 RFL (8th) 256. [ 61 ] I find that the trial judge’s reasons were sufficient.

The trial judge laid out, in meticulous detail, the evidence and his findings related to each issue. He also explained fully why he accepted some evidence and rejected other evidence. By way of illustration, without any attempt at a comprehensive listing, I note the following findings by the trial judge regarding the credibility of Mr. Fraser and one of his witnesses: (

a) The medical professionals, including the one who Mr. Fraser and his sister had arranged to examine the child, found no signs of neglect or abuse. The independent and credible evidence completely refuted any such allegations. Despite this fact, Mr. Fraser, with the assistance of his sister, had continued to make these false assertions and did not relent in their campaign to malign and discredit Ms. Ksenych. (

b) Mr. Fraser and his sister had recorded an exchange between him and Ms. Ksenych and intentionally attempted to provoke a confrontation in front of the child in an effort to create evidence to use against Ms. Ksenych. (

c) Mr. Fraser had deliberately attempted to mislead the court in his January 30, 2020, affidavit. (

d) Ms. Ksenych’s aunt was eager to denigrate members of Ms. Ksenych’s family and the child’s family doctor. She was evasive, expressed strong opinions on matters for which she had no factual basis, and deliberately tried to mislead the trial judge about a letter she initially claimed not to have received. [ 62 ] The Trial Decision gives a clear and comprehensive explanation of the trial judge’s findings and determinations. There is no mystery as to what was decided and why. This ground of appeal has no merit. C.

Property division calculation error [ 63 ] The parties agree that the trial judge erred in one minor aspect of his calculation regarding the net proceeds from the sale of the family home. Regrettably, neither party provided this Court with any assistance as to how this changed the property division or the judgment. As such, I will perform the calculations. [ 64 ] When the family home was sold, Ms. Ksenych had been paid $11,980 from the net proceeds and Mr. Fraser had received the remainder.

The parties agree that the net proceeds from the sale of the family home were $23,744.63, whereas the trial judge, in paragraph 251 of the Trial Decision , erroneously stated that this amount was $25,535.59. As a result, the amount Mr. Fraser received from the net proceeds from the sale was overstated by $1,790.96, because it was actually $11,764.63, not $13,555.59. This is conceded by Ms. Ksenych.

The amount under the “Matt” column for the Family Home (Net) row, found in the chart at paragraph 258 of the Trial Decision , therefore, should have been $11,764.63: carrying this through to the end of the chart changes Mr. Fraser’s net non-taxable property value to -$17,200.78. The value of his net non-taxable property was negative because of the family debt in his name. Ms. Ksenych’s net non-taxable property value remains at $5,608.85.

This leaves a net family property value of -$11,591.93. [ 65 ] Under an equal division of property, and allowing credit for the debts found to be appropriate by the trial judge, each party should have been left with an amount of -$5,795.97 (i.e., -$11,591.93 x 50%). To achieve this balance, Ms. Ksenych should have been required to pay to Mr. Fraser $11,404.81 (-$17,200.78 plus the equalization payment = -$5,795.97 or $5,608.85 minus the equalization payment = -$5,795.97), rounded to $11,405. [ 66 ] I note that this amount is higher than one would expect to result from the error identified by Mr. Fraser.

Fortuitously for Mr. Fraser, the re-calculation for the error he identified has also revealed a second minor error. In determining the equalization payment,

the trial judge added Mr. Fraser’s net non-taxable property amount to Ms. Ksenych’s net non-taxable property amount, which resulted in - $9,800.97 net family property. Despite his desire to achieve an equal distribution, the trial judge stopped at this point and ordered an equalization payment of $9,800. This also represents an error, because, after the $9,800 equalization payment, it would have left Ms. Ksenych with -$4,191.15 ($5,608.85 - $9,800) and Mr. Fraser with -$5,609.82 (-$15,409.82 + $9,800), when the trial judge intended it to be an equal amount.

After determining the net family property of -$9,800.97, he should have then calculated how much Ms. Ksenych would have to pay to Mr. Fraser in order to ensure that each of them was in the same position with regard to net non-taxable property.

He did not perform that second step in the calculation, resulting in the equalization payment being understated by another $709.34 ((- $5,609.82 - -$4,191.15) x 50%). [ 67 ] Taking these two errors into account increases the equalization payment by a total amount of $1,604.82 (1,790.96 x 50% + $709.34), rounded to $1,605. [ 68 ] Two aspects of the formal judgment must be changed as a result of these calculation errors. The equalization payment payable from Ms. Ksenych to Mr. Fraser shall be changed from $9,800 to $11,405. In addition, the reconciliation, which required Mr. Fraser to pay $4,200 to Ms.

Ksenych – after setting off the equalization payment against the costs order of $14,000 – shall be changed from $4,200 to $2,595. VI. CONCLUSION [ 69 ] The appeal is allowed only to the extent of modifying the judgment to correct the calculation errors for the equalization payment related to net non-taxable property, as identified above. It is otherwise dismissed. [ 70 ] Mr. Fraser was successful on one minor aspect of the appeal, but that issue was not contested by Ms. Ksenych. In these circumstances, Ms. Ksenych shall have her costs of the appeal calculated in the usual manner. “Tholl J.A.” Tholl J.A.

I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Jackson J.A.” Jackson J.A.