THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 127 Date: 20051115 Between: Docket: 1021 James Garry Hunter (Petitioner by Counter-Petition) and Beverley Anne Gutenberg (Respondent by Counter-Petition) Coram: Vancise, Sherstobitoff Richards JJ.A. Counsel: Timothy E. Turple for the Appellant Lynne Greenhorn for the Respondent Appeal: From: 2004 SKQB 373 (CanLII) Heard: November 15, 2005 Disposition: Dismissed (orally) Written Reasons: November 16, 2005 By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Richards SHERSTOBITOFF J.A. [1] The appellant appeared for his trial in matrimonial matter after peremptory adjournment. He refused to participate in the proceedings and the judge ordered that the trial proceed without him, although the judge did allow friend to give evidence on his behalf. She rendered judgment dividing the matrimonial property and dismissing the appellant’s claim for maintenance. The appellant now appeals the decision on the ground that the trial should not have proceeded in his absence. [2] The trial judge, in her reasons for judgment, carefully explained the background of the matter. The trial had been adjourned several times in the past. The appellant had, during the course of the proceedings, fired one lawyer, and another lawyer had withdrawn. The appellant had been forewarned, in writing, that the trial would not be adjourned for any reason less than medical certification that his health would be put into jeopardy by his attendance at trial. He filed letters from two doctors. The first outlined the medical conditions from which the appellant suffered and stated that it was given “to support representative to be present for court proceedings on behalf of the above patient”. The second said that “his condition is adversely affected by emotional stress and, and it may be to his advantage to appoint someone to act on his behalf in his impending court case.” [3] At trial, the appellant appeared with friend, Mr. Hawke, and told the court that he was incapable of representing himself and that he needed lawyer. He then withdrew from the courtroom. The court, through Mr. Hawke, offered several accommodations to encourage him to participate, including allowing his friend to sit with him, provision of written instructions on the conduct of trial by self-represented litigant, time for consultations and preparation during the trial, and private room for consultation. The appellant refused to return to the courtroom. [4] The trial proceeded in his absence. Mr. Hawke was allowed to give evidence on behalf of the appellant after advising the court that the appellant wanted him to give evidence. [5] The court granted divorce, divided the matrimonial property, and dismissed the appellant’s claim for maintenance since no evidence was led with respect to it. [6] We can find no error in the decision of the trial judge. The medical opinions fell far short of justifying anything other than allowing someone else to represent the appellant, but the appellant had already demonstrated an inability to obtain the services of lawyer acceptable to him and the appellant declined to proceed with Mr. Hawke at his side. The appellant had no suggestions as to how to proceed, but simply declined to participate. While the condition of the appellant must be of concern, the evidence did not indicate any inability to either instruct counsel or to represent himself in court. In the circumstances, the trial judge had little choice but to do exactly what she did. [7] The authorities cited by the appellant in his factum have no application to this case as they all deal with situations where a person did not appear at his trial. In this case, the appellant appeared, but refused to participate. For the same reason, Queen’s Bench Rule 271 has no application. [8] In the circumstances, we have no choice but to dismiss the appeal with costs.
The appellant appeared for his trial in a family law matter. He refused to participate and left. The judge ordered that the trial continue without him. A judgment was rendered, dividing the matrimonial property and dismissing the appellant's claim for maintenance. The appellant now appeals on the ground that the trial should not have proceeded without him. HELD: The appeal is dismissed. 1) There is no error in the decision of the trial judge. The medical evidence did not indicate any inability to either instruct counsel or to represent him in Court. The trial judge had little choice but to do what she did. 2) The authorities cited by the appellant have no application to this case as they all deal with situations where someone did not appear at his trial. In this case, the appellant appeared but refused to participate. For the same reason, Queen's Bench Rule 271 has no application.