The Honourable Justice Deborah Swartz’s Questionnaire

Backgrounder

Under the new judicial appointment process announced by the Minister of Justice on October 20, 2016, any interested and qualified Canadian lawyer or judge may apply for such appointment by completing a questionnaire. The questionnaires are then used by the Judicial Advisory Committees across Canada to review candidates and submit a list of “highly recommended” and “recommended” candidates for consideration by the Minister of Justice. Candidates are advised that parts of their questionnaire could be made available to the public, should they be appointed to the bench.

Below are Parts 5, 6, 7, and 11 of the questionnaire completed by the Honourable Deborah Swartz.

Questionnaire for Judicial Appointment

[...]

PART 5 – LANGUAGE

Please note that in addition to the answers to the questions set out below you may be assessed as to your level of language proficiency.
Without further training, are you able to read and understand court materials in:

  • English: Yes
  • French: No

Without further training, are you able to discuss legal matters with your colleagues in:

  • English: Yes
  • French: No

Without further training, are you able to converse with counsel in court in:

  • English: Yes
  • French: No

Without further training, are you able to understand oral submission in court in:

  • English: Yes
  • French: No

PART 6 – EDUCATION

Name of Institutions, Years Attended, Degree/Diploma and Year Obtained:

  • Queen’s University Faculty of Law, 1989-1992 (LL.B.)
  • University of Western Ontario, London Ontario, 1986-1988 (2 years of undergraduate studies)
  • McMaster University, Hamilton Ontario, 1988-1989 (B.A.)

Continuing Education:

  • Fundamentals of Family Arbitration Training, March 2010, Riverdale Mediation Services (Hilary Linton), Kingston
  • Kingston Basic Family Mediation and Negotiation (40 hours), May 2011, Riverdale Mediation Services (Hilary Linton), Kingston
  • Advanced Mediation Training (20 hours), November 2011 (Maggie Hall and Vicki Visca), Belleville
  • Domestic Violence Awareness and Screening Course, Riverdale Mediation Services (Hilary Linton), Kingston
  • June 2009/biannual update/fall 2011/spring 2013/fall 2015 – Kingston Med/Arb Group Training
  • Parenting Coordination, Practice Focused Training, Toronto, October 2006 (Dr. Barbara Jo Fidler)
  • Collaborative Family Law, Level One and Two training levels, Kingston, Fall 2003
  • Children’s Lawyer panel member annual training sessions, 1999 to present
  • Family Responsibility Office, panel member training, April 2005
  • Ongoing C.L.E., usually by way of video replay at Law Library (2-3 per year), including operation updates on the child support guidelines, spousal support guidelines, tax, evidence, property division, trust claims, advocacy and annual leading cases review/annual Thousand Islands Legal Conference/Family Law Summit

PART 7 – PROFESSIONAL AND EMPLOYMENT HISTORY

Please include a chronology of work experience, starting with the most recent and showing employers’ names and dates of employment. For legal work, indicate areas of work or specialization with years and, if applicable, indicate if they have changed.

Legal Work Experience:

2006-PRESENT: FAMILY LAWYER, MEDIATOR, ARBITRATOR and PARENTING COORDINATOR

  • 2003 to present, Collaborative Family Lawyer
  • 2006 to present, Parenting Coordinator
  • 2010 to present, Mediator – Arbitrator
  • I practice in all areas of family law, including child and spousal support, complex property division, pensions, custody, access, mobility, child protection, same-sex/step-parent adoptions, divorce, domestic contracts, insurance, estate and tax issues, FRO hearings and dependent parent support matters. I regularly argue motions and attend at case and settlement conferences, pre-trials and trials. I draft documents and contracts for clients and attend with clients as counsel in mediations and arbitrations. Many of my legal files are collaborative in nature and involve resolution by way of a series of four-way meetings with the clients and the lawyers.
  • My current practice also continues to include Children’s Lawyer work and a significant number of legal aid files. I attend as Duty Counsel and in the Family Law Information Center (FLIC) at least 3 times per month. I am usually in court once per week and attend one to two settlement or disclosure meetings in my office or colleagues’ offices each month.
  • I consistently have a number of active files where I am the mediator, arbitrator or parenting coordinator. This work is referred to me by local colleagues, including both lawyers and social workers.

1992-2006: BISHOP LAW OFFICE, KINGSTON

  • 1992-1993 – Articling Student
  • 1993-2006 – Family Law/Litigation Associate
  • 1999 – Joined Children’s Lawyer Panel
  • 2001-2006 – Officer Management Lawyer
  • 2002-2004 – Contract Counsel for Kingston Ontario Works Program
  • 2005 – Joined Family Responsibility (FRO) Panel
  • I worked in all areas of law within this general practice firm, including criminal, family, wills and estates, corporate, litigation, small claims, real estate and real estate litigation, personal injury litigation and mediations, construction liens and debt collections. I attended weekly court matters in provincial criminal and family, small claims and what was then General Division civil court. I also acted as an articling principal during this period and was the managing lawyer in the firm addressing all staffing and technology issues. I implemented a medical/dental package for the staff and addressed accounting and advertising.

Non-Legal Work Experience:

  • 2009-present – Apiarist (beekeeper) and Small Farm Owner – Bark ’n’ Bees Farm and Apiary
  • 2001-2002 – Teaching, St. Lawrence College Instructor, Small Claims Court Procedure Course, for law clerks (established curriculum and taught course)
  • 1990-1991 – Queen’s School of Business, Academic Marker for adjunct professor while I was in law school (review and marking of 3rd and 4th year business class exams and papers)
  • 1988-1989 – Hamilton YMCA and McMaster University Pools – Lifeguard and swim/aquafit instructor (fast paced and challenging, high conflict management and supervision of children and at risk teens, teaching seniors and people with special needs)
  • 1986-1988 – Walkerton Recreation Department – Assistant Pool Manager, Head Guard/Red Cross Instructor (daily interaction with public, teaching infants to seniors, staff and business management)
  • 1981-1986 – Hanover Golf Course, Walkerton Maple Leaf Restaurant, Kentucky Fried Chicken, waitressing and cleaning

Other Professional Experience:

List all bar associations, legal or judicial-related committees of which you are or have been a member, and give the titles and dates of any offices which you have held in such groups.

  • Frontenac County Law Association, 1992 to date (served on various committees over the years. For example, social and awards committee)
  • Canadian Bar Association, 1992-2012
  • Bench and Bar Committee, Kingston Superior Court (Family) 2013-2016
  • Child Protection Committee, Bench and Bar, Kingston Court, 2016 to date
  • Family Law Subsection, Frontenac County Law Association, 1996 to date (Co-Chair for two periods over last 10 years)
  • Kingston Collaborative Family Law Group, 2003 to date (Co-Chair 2008-2009)
  • Parenting Coordinators of Kingston, 2006 to date
  • OAFM – Ontario Association of Family Mediators (Associate Member), 2010 to date
  • Frontenac CAS and Frontenac Law Association AD HOC Committee re Protocol on Reporting and Investigating Child Abuse 1996/1997 (Joint Report Hotel Dieu Hospital)
  • Member of the Information and Fee Outline Pamphlets, Frontenac Law Association Committee, 1997-1998

Pro Bono Activities:

  • See below

Teaching and Continuing Education:

List all legal or judicial educational organizations and activities you have been involved with (e.g. teaching course at a Law Faculty, bar association, National Judicial Institute, Canadian Institute for the Administration of Justice, etc.)

  • Bar Admissions Instructor in Civil Litigation/Advocacy (Kingston session), 2004-2006
  • St. Lawrence College, Instructor Small Claims Procedure for Law Clerks, 2001-2002
  • Occasional Guest Lecturer, Queen’s Faculty of Law – Family and Children’s Law (Professors Nick Bala, Sue Miklas, Mary Jo Maur), 2003 to date
  • Queen’s Clinical Family Law class (Prof. Bala), Placement Supervisor (currently two students per year), 1999 to date
  • Legal Aid Domestic Violence Seminar (Kingston), Guest Speaker, Role of Duty Counsel, 2007
  • Joyceville Penitentiary, occasional guest speaker on Family Law and Legal Aid – attend with Area Director of Legal Aid, 2005 to 2009
  • Family Law Summit, March 30 and 31, 2015, Toronto – Panelist, “Absolutely Essential Checklist for Opening a Sole Practice”
  • Kingston Med/Arb Group – Domestic Violence Awareness Training, Organizer and Speaker Fall 2015

Community and Civic Activities:

List all organizations of which you are a member and any offices held with dates.

  • 2012 to date – OBA – Ontario Beekeeping Association – farm member
  • 2014 to date – International Fainting Goat Association – farm member
  • 2014 to date – Rare Breeds Canada – member
  • 2013-2016 – Volunteer – Escott, Leeds County Library, Spring Fling Fundraiser
  • 2010-2011 – Volunteer – Relay for Life, Cancer Fundraiser, KCVI Kingston
  • 2005-2007 – YMCA (RKY) Summer Camp, Program and Safety Committee member
  • 1997-2000 – Grenville Park Co-operative Housing Association, Board member
  • 1995-1997 – Phillips Street Community Awareness Group, Traffic Calming Study/Submissions to Kingston City Hall
  • 1994-2007 – Kingston Ice Wolves Girls’ Minor Hockey/Kingston Boys’ Minor Hockey Associations and C.A.L. Hockey League, House league convenor – atom girls, fundraising and parent volunteer
  • 1994-2004 – Balsam Grove/Polson Park Public Schools, Parent Council and volunteer, fundraising and board/parent relations
  • 1992-1993 – Kingston Women’s Health Network, board member at large

[…]

PART 11 – THE ROLE OF THE JUDICIARY IN CANADA’S LEGAL SYSTEM

The Government of Canada seeks to appoint judges with a deep understanding of the judicial role in Canada. In order to provide a more complete basis for evaluation, candidates are asked to offer their insight into broader issues concerning the judiciary and Canada’s legal system. For each of the following questions, please provide answers of between 750 and 1000 words.

1. What would you regard as your most significant contribution to the law and the pursuit of justice in Canada?

  • My most significant contribution to the law and the pursuit of justice in Canada occurs in my daily interaction with members of the public, those who are interacting with the justice system. There is not one isolated thing that I have done. I have not argued at the Supreme Court. I have not appealed to the Court of Appeal. I have not made the front page as counsel in a notorious case. I help people with difficult problems.
  • I provide advice, suggestions and choices as I assist clients with their legal issues in and out of the court. I recommend the court as the path of last resort, especially for family problems. My advocacy for my clients is always coupled with the hard question of long-term goals rather than the immediate fight. If my clients end up in court, there is often a sense of failure in not having found successful alternatives. When I appear in court I take my role as an officer of the court seriously. If my clients must be there then it must be taken seriously.
  • Most of the lawyers that I work with take their work seriously, work diligently for clients and have faith in our justice system. Our courts have in many ways lost some of the formality and tone of the past. Some of that is good. A feeling of accessibility is essential. The public perception of lawyers and our courts is something for which I feel we are all responsible. Without faith in the court system, those who are the most in need of help will be even more disadvantaged as they will not see the court as an option at all available to them. I do not find lawyer jokes funny. Very rarely do I hear one that truly reflects the people I work with and our legal system. I am caught off guard when lawyers tell these jokes. I wonder how people in need can see the court as a resource if the court itself and those who work within it are the brunt of jokes and derision.
  • One of the clearest examples of the impact that public perception has on our system and the faith that the public ought to have in it, has been given to me by my daughter. When my daughter was in Grade 2 she was called into the office at school and reprimanded tor not wearing her winter coat. She explained that she had given her coat to another younger girl who did not have a coat. She was told to retrieve her coat and not do that again. She came home in tears demanding that I “tell the judge” to make the parents of the girl get her a coat and to “make a law” that kids with warm coats could give them to others, without getting in trouble. Her view of what I did and what happened in our court was simple – “Get the judge to make it better mom”.
  • This child of mine is now in law school and when she wrote her application for admission she said that she grew up thinking lawyers were superheroes. I tell you this not because I am bragging about my daughter’s view of me or because I am immensely proud of my kid (although I am) but rather as the example I keep in mind of the esteem with which we all need to exemplify our profession so that the public can feel entitled to access our courts and be heard.
  • In the trial courts, where my work is focused, the serious and intimate lives of Canadians are under review and often open to public examination. Judges are making choices for Canadians that have an impact on all of us and our children in particular. Whether it is a criminal, civil or family matter, the decisions coming out of our trial courts form the underpinning of our society. When we can’t agree, they direct the day to day practical steps of our lives. In my experience, the trial courts are connected to everyday Canadians in a practical way that the appellate courts are not. This is not to say that the appellate courts are not relevant to Canadians, but only that for most people, access to their local family, civil and criminal courts is crucial to them in an immediate way than having access to the higher courts. My work in the trial level courts for members of my community is a contribution that I believe I am making and is a responsibility that can most directly impact our justice system.

2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?

  • I have, over time, lived and worked in many different areas of our province. I have lived in big cities, towns, villages, and I now live on a farm. I have worked at many different jobs and have had at least one job and often two from the age of 14. My mom came to Canada from France when she was 9, just after the war. My father was a mechanic and did not graduate high school. My grandfather could not read very well, but my grandmother could, and so she managed the business part of their farm while he looked after the animals and crops. My mother completed her university education as I was growing up. I remember clearly trying to talk to her (about some sort of pressing teenage issue) through the bedroom door, where she had set herself up away from her demanding children so she could get her “schoolwork” done. My family has addressed elder care for two generations of grandparents and moved my great-grandmother to Canada to live with my grandparents. As a small farmer and beekeeper I have returned to my rural childhood roots and am connected to my local agricultural community. Sustainable farming and food production happens daily in my life. My life as a young adult in urban parts of the province balances and diversifies my experiences.
  • University for me was a very different environment from my home life and upbringing. The intellectual challenge was compelling and opened up for me a new perspective on our country and our world. Law school was a rich and consuming time. My children were born in first and third year. It was busy. My understanding of feminism and equality issues was enriched and developed. I carry with me the benefit of the broad and accommodating efforts that my professors made to ensure that I was able to see and understand the changes that had occurred in our culture, changes that allowed me to walk pregnant through the doors of the law school. This experience marks my approach to law. I am proud to be part of a system that has changed so much and still has much to do.
  • I am committed to ongoing education and have a Queen’s law student with me each semester from Professor Bala’s Clinical Family Law program. Maintaining my connection with law students keeps me sharp and connected in my practice to the most current and relevant legal issues. More importantly, I hope that I am having a positive impact on new lawyers. As a sole practitioner the experience that these students have with me is a varied one. In my office the students are exposed to all areas of family and children’s law and to client problems that span the diverse and rich nature of our country.
  • My work in family court as duty counsel also ensures that I continue to learn and understand the issues faced by all of us. This challenging and satisfying work is an acute reminder of how far we have yet to go in achieving balance in access to justice and resources.
  • I have traveled extensively within Canada and internationally. Most recently I attended a beekeeping course in Nicaragua focused on sustainable agricultural development. As a farmer and beekeeper from so far away, it was uplifting and empowering to engage with a group of people so focused on developing a community unaffected by geography, gender or ethnicity and connected by our common passion. Our group was a global community. We spoke three different languages, came from many different countries, were different genders and were aged from 18 to 60. Many questions were asked about Canada’s system of government and justice. Questions about the challenges faced by our First Nations people and why Canada has been slow to open and maintain effective dialogue, in particular around environmental and land rights, were difficult to explain. Our lack of clean drinking water in First Nations communities was something that I discussed with great shame and no reasonable explanation. Immigration to Canada was, for many, a faint hope and unlikely dream. It was unsettling as a child of immigrants to know how significant such a move could be for families and how difficult to achieve for most.
  • My life experiences within the Ontario and Quebec linguistic and cultural milieu are a regular part of my family dynamic. Both of my children completed their undergraduate degrees in Quebec and my oldest has lived in Quebec for 6 years now. We spend much of our vacation time in Quebec. My children speak French fluently. They repeatedly (and not so tactfully) suggest that I let them talk French when we visit them in Quebec. My French is a work in progress and a part of my Canadian and European heritage. It is something that I am working to improve.
  • My family has lived in many parts of Canada. I have spent significant time in British Columbia as my youngest has lived there for a number of years. I have a deep and personal understanding of the diversity of language, economics and culture in our province and country.

3. Describe the appropriate role of a judge in a constitutional democracy.

  • As I considered this question I first wrote:
  • The appropriate role and responsibility of a judge is to hear all voices before them, providing a keen and impartial ear, clarifying and thoughtful questions, respectful interaction and careful, practical decisions. Judges must also protect people from abuse of power and balance inequities. It is the role of the judge to provide consistency – all while ensuring respect for the rule of law – statutory and common.
  • I then went back to the question and considered “in a constitutional democracy”. I came back to “impartial” and “rule of law”.
  • The role of judges is different in the different levels of court. In all courts, however, judges must be, and be seen to be, impartial and independent from the government and any other outside influence in order to provide an impartial and fair hearing of the issues. Judicial independence is a fundamental principle of a constitutional democracy in order that all citizens can expect access to a fair hearing free from interference. As one of the three separate parts of our government, the other two being the executive and the legislature, judges must not only address problems between people but must also protect Canadians from abuse of power and government action that might infringe on our Charter-protected human rights. Resolving disputes between the different levels of our government is also part of the work of judges in our constitutional democracy.
  • In the trial courts, judges hear from parties, consider their evidence and decide on the facts of the case. They must then determine how to interpret and then apply statutory laws that have been created by our elected officials. They will also decide how to apply the case law (common law) decisions of other judges. Applying the common law as our society grows and changes is a work in progress as our judges attempt to keep abreast of the diverse and shifting nature of our world. In this way they are creating new “judge made” law while also working within the existing statutory structure created by the other branch of our government (the legislature). This balance ensures consistency and predictability in the law – the Rule of Law.
  • The appellate courts will review and correct errors of the lower courts and create a body of clarified case law from which a consistent and more coherent structure of laws emerge. The Supreme Court acts as a court of appeal and also more and more frequently is involved in the making of new law in its review of lower court decisions. The proactive nature of our Supreme Court is in my view a laudable and important role especially given the rapid pace of change in our country and the need to address changing societal expectations and needs.
  • This is of course a challenge to our elected representatives in the legislative branch of government as it is their job at first instance to make our legislation and the courts to implement. Some would argue that it is not for the courts to make laws but to implement them. The Charter has effected great change in the role of our Supreme Court and has allowed our system of justice to fundamentally protect against breaches of our rights and liberties.

4. Who is the audience for decisions rendered by the court(s) to which you are applying?

  • The audience for decisions rendered in the Ontario Superior Court are our neighbors across the fence, next door, in the next city, farm, village and province.
  • In civil and family matters the participants are closely attuned to the outcomes. The lawyers and clients in the case before the court or who have upcoming cases, pay close attention to similar decisions as there may be a direct impact on them. Members of the public are also following significant civil and family cases and of course journalists are keenly aware of the cases that are the most compelling and of interest to a more general audience.
  • In criminal matters the decisions are most closely watched by the accused, the victim and their families (in the case before the court) and then more generally by the lawyers, judges and court staff working within the court system. Members of the press are also ever watchful of criminal decisions and in turn the Canadian public. Agencies and advocacy groups for the various participants in the criminal court will also be attentive to the decisions rendered by the court.

5. Please describe the personal qualities, professional skills and abilities, and life experience that you believe will equip you for the role of a judge.

  • I have not always wanted to be a judge. I was not really sure I wanted to be a lawyer until part way through law school. My reasons for wanting to be a judge, and in turn why I feel capable, are directly related to those things in my practice and my life that remind me of why I decided to be a lawyer. Those things bring me to this application and I think that describing these will explain why I think I would be a good judge.
  • Working as duty counsel on a busy motion or C.A.S. list day is challenging and satisfying. I work hard making sure that the people I see are able to tell their story and have options in front of them. Advocating for someone, who until then, has had little help and faith in the system brings me back again and again. The delay and problems within our court system are so much easier for clients to accept when they are given information and a moment to be heard by the judge.
  • Every time I explain my role to a child client and their face brightens when they understand what I do, I am reminded of the positive parts of our system. To see them relax when I tell them that they do not need to choose and that I can speak to the adults for them, is to see one of the best parts of our legal structure at work. To see our court system lift that kind of burden off a child whose parents are waging a custody battle is uplifting.
  • Assisting an abused woman with emergency orders and seeing the court work to help keep her safe also brings me here. So do the many files where the orders and the system don’t work. My faith in change is sometimes challenged by the reality of how slow that change can be.
  • I want to be more involved in a system that I hold in great esteem; a system that I witness helping people every day and to which I believe I am contributing.
  • I worked in a small firm for 14 years and as a sole practitioner for the last 10 years. I have worked for parents and for children involved in C.A.S. matters. I have had clients as young as 2 and as old as 95. I have dealt with complex property matters and applied the child and spousal support guidelines. I have had high conflict custody and complex mobility cases.
  • I have argued evidence issues and have conducted settlement meetings in my office. I have met child clients at group homes, in jail, at schools and in the park near my office. I have attended adoption ceremonies and joined families for dinner afterward. I have attended with a client in the tum over of her newborn infant to the C.A.S. I have dealt with complex pension matters and regularly call our local actuarial expert to set me straight. I have arbitrated family law matters and had those decisions filed with the court for enforcement. I have mediated high conflict disputes to a successful conclusion.
  • I have acted for parents in emergency protection hearings at the hospital in blood transfusion disputes. My office dog and I have visited families and children in isolated, poverty-stricken areas. I have a long term child client who takes me fishing near her foster home and “lets” me bait her hook. My assistant has been with me for 14 years and has a smile on her face most days.
  • I expect that my formal education and legal career, while essential, will probably have as much of an impact on my ability to discharge judicial duties as will my background and life experiences.
  • These are the things that will equip me.

6. Given the goal of ensuring that Canadians are able to look at the justices appointed to the bench and see their faces and life experience reflected there, you may, if you choose, provide information about yourself that you feel would assist in this objective.

  • I have a simple and unremarkable family background. I have no prime ministers, celebrities, poets or other social notables in my background. Many of the experiences that I would bring with me are simple ones.
  • I have worked as a waitress and have fried chicken at a fast food restaurant. I have picked strawberries, weeds and rocks. I taught swimming to infants and adults with special needs. I have marked exams and cleaned toilets at a golf club. I have changed diapers and cut paycheques. I can drive a tractor, back up a trailer and make great muffins.
  • I have convened a hockey league and run a board meeting. I have assisted with school fundraisers and addressed city hall.
  • I have painted a house, tiled a floor, been a landlord and chased down errant teenagers on a Friday night. I have been through a divorce, co-parented children and married again.
  • I have lived in different parts of this province and have traveled to different countries. I have broken up pool-side fights and delivered at-risk teens to shelters. I have family members who speak other languages and little English. I understand the difficulties that step parents face and the challenges of parenting.
  • I know that life is not simple, most people are good and that for many families the court is the last resort.
  • I am a first-generation Canadian and have a rural and small town background. My father was an auto mechanic and my mother was an elementary and secondary school teacher. I lived in small towns until university and was raised largely in and around my grandparents’ farm in south-western Ontario.
  • The women in my family are strong. In my younger rural world it was women who were in charge and who seemed to run my world. I did not know sexism or racism. I thought that all people had the same opportunities that I was always told I had. Blunt communication, fair play and hard work marked my childhood.
  • University (especially law school) was an eye-opening experience for me. I learned very quickly that the world I knew was not the world that everyone knew. I had been very lucky and sheltered. I became involved in feminism and environmental movements while at Queen’s University and became very interested in children’s law. The more I learned about social issues and our legal system, the more I wanted to practice in an area that had a direct (if not daily) impact on people.
  • I have had my family along with me for my legal education and career. My children attended classes with me when they were newborns. I studied and practiced law with them always in mind and often in my lap. I had to quickly learn time management skills.
  • The conflict resolution skills that I acquired while raising my teenagers rival any that I have gained in C.L.E. programs and are used daily with my clients.
  • The realization that lasting solutions only come after all involved are given a full chance to define the problem and offer their own suggestions, came to me slowly in my practice and very rapidly at home. My current experience as a parent of independent young adults has left me with a more measured and patient manner of communicating. I have learned to listen more openly and carefully consider my answer.

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