The Honourable Darlene L. Summers’s Questionnaire

Under the new judicial application process introduced by the Minister of Justice on October 20, 2016, any interested and qualified Canadian lawyer or judge may apply for federal judicial 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 may be made available to the public, with their consent, should they be appointed to the bench. The information is published as it was submitted by the candidates at the time they applied, subject to editing where necessary for privacy reasons.

Below are Parts 5, 6, 7, and 11 of the questionnaire completed by the Honourable Darlene L. Summers.

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 Law School (1985 to 1988)

Bachelor of Laws, 1988

Queen’s University (1982 to 1985)

Bachelor of Arts, 1985

Continuing Education:

Collaborative Family Law Training including the Negotiation Skills component. I completed the collaborative segment in April 2005 and due to illness and program availability, I was not able to complete the negotiation portion until January, 2007.1 chose not to join the collaborative network or pursue that method of practice.

Four-day intensive ADR program entitled "How to Deal with Difficult People”. The program was offered through the University of Windsor Faculty of Law and delivered by the Stitt Feld Handy Group. The Certificate of Achievement was awarded November 1st, 2013.

Numerous substantive programs in excess of annual mandatory cpd hours as well as courses on oral advocacy, written advocacy, trial preparation and trial advocacy.

Honours and Awards:

Queen’s Law School,

Awarded the prize in third year for the highest mark in the Will & Estates, 1988.

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:

1. Thompson Summers, Family Law - I am self-employed as a sole practitioner. I have worked in association with my colleague, Barbara Thompson, since July 1st, 2007.
2. Steinberg Thompson d’Artois Rockman Summers - Between July 1st, 2002, and June 30th, 2007, I practiced family law as a sole practitioner in association with four family law lawyers: Gary Steinberg, Barbara Thompson, Kathryn d’Artois and Lynn Rockman.
3. Burke-Robertson LLP - I began my legal career at Burke-Robertson Chadwick & Ritchie in 1988 as an articling student. I was hired as an associate lawyer in 1990, became a partner in 1995 and a managing partner in 1999.

Non-Legal Work Experience:

After graduating from secondary school in 1977, I worked in the insurance industry in both Ottawa and Edmonton. My work was in underwriting and sales for motor vehicle and property insurance. In 1982, I enrolled at Queens as a mature student.

1. 1977 to 1979 - The Hartford Insurance Company, Ottawa, ON
2. Sept to Dec 1979 - The Royal Insurance Company, Edmonton, Alta
3. 1980 to 1982 - The Personal Insurance Co., Edmonton, Alta, and Ottawa, ON

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.

Carleton County Law Association (current member)

Advocates Society (current member)

Canadian Bar Association (past member)

Pro Bono Activities:

My pro bono activities within the profession are private, ad hoc and flow from the needs of individuals that I encounter in my practice where I have the ability to help provide legal assistance without charge.

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.)

1. Family Law Seminar Leader at the Bar Admission Course for several years during the mid to late 1990’s and early 2000’s.
2. Spousal Support Panelist, CCLA Civil Litigation Conference, Montebello, 2000
3. Authored and presented “Family Law - An Update” at the East Region Solicitors Conference, Montebello, 2001
4. Guest Speaker on the issue of Pleadings, “Preparation for Trial”, Ottawa CCLA, CLE Program, 2002
5. Guest speaker, Law Society of Upper Canada, Women Lawyers Symposium, Ottawa, 2010
6. Guest speaker on the issue of Costs, Ottawa Family Law Study Group, 2012
7. Volunteer Judge, University of Ottawa Law School Negotiation Competition, 2015
8. Volunteer Judge, University of Ottawa Law School, First Year Nelligan Moot, 2016
9. Scheduled speaker at University of Ottawa Law School, Professionalism Series, February 14, 2017

Community and Civic Activities:

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

1. Volunteer board member and member of the executive committee for Family Services Ottawa for several years during the early to mid-1990s. Family Services Ottawa is a community based counselling and support services organization for Ottawa residents.
2. Dress for Success Ottawa, Legal Group Fundraising Sub-Committee, 2011. Dress for Success is a charitable organization that assists women in their return to the workplace by providing professional work attire and a network of support to help women develop the tools and strategies to facilitate employment success.

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?

As a family law practitioner, the pursuit of justice has been a grass roots endeavour. It has been about the day-to-day delivery of legal services to individual clients in a manner that is respectful, inclusive, and educative. As I see the practice, it is not only critical to know the law and understand how to help clients with their legal disputes, it is likewise critical to help the client understand the law and how it applies to their situation, whether it be in a way that protects their rights or in a way that imposes obligations on them. It is also important to share with the client the historical and/or policy reasons behind certain laws as well as the process options available to them as they work toward resolution.

It is not uncommon for family law clients to find themselves misinformed, often by well-meaning third parties, confused by what the law provides for them, what it requires of them, and why. They are frightened by the fact of separation, and divorce, and are very worried about what the consequences could be. They need me to answer their questions.

Providing assistance first entails listening carefully to the events that have turned their lives upside down. Only then can their concerns be understood and answered before moving on to distill the relevant facts from what is often an emotional outpouring of information. Helping the client entails thoughtful consideration of his or her particular facts, how the law applies to those facts, and how to bring the two together in a way that meets the client’s goals. In resolving what is often the multiplicity of issues that flow from marriage breakdown, the challenge for counsel is to pull it all together in a way that helps the client feel heard, to understand how all of the pieces must come together, and to appreciate the steps to be taken to get to resolution in a meaningful way, in as timely a fashion as possible. That is how I advance the pursuit and understanding of justice. The hope is that increased individual knowledge will contribute to community belief in, and respect for, our justice system and the rule of law.

As a family law lawyer for the past 26 years, my contribution to the law has been through the hard work of helping individual clients  achieve fair and thoughtful settlements, where possible, rather than proceeding to trial. This approach to practice was instilled in me by those responsible for my early training. Preparing the case from the outset as if it is proceeding to trial, is also the best preparation for settlement. It is an approach that I believe in and it is one that is entirely consistent with the Family Law Rules and their focus on settlement at all stages of an action. The result of this approach, my settlement skills, and ability to assess the strengths and weaknesses of a case, is that I have only a small number of reported cases. I am confident that my proven track record will enable me to make a strong contribution to dispute resolution in the courts.

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

Almost by definition, years of experience as a family law lawyer in a large urban center such as Ottawa also means years of exposure to Canadians from a broad range of racial, ethnic, cultural, religious, socio-economic, and LGBTQ2 communities. To assess how to best serve and meet the needs of any client, it is essential to listen not only to their legal concerns but also listen to the way they describe their life experience, their beliefs, their values, their individual goals and how those fit into their larger community. Key to this is admitting what you do not know about their beliefs and values while also demonstrating the wish and need to understand, to learn about their community and life experience in a way that allows you to help. Many questions must be asked, and respect for answers communicated.

Through friends and clients, I’ve become increasingly aware and mindful of those from other countries who have little or no experience with the rule of law or a truly independent judiciary that they can trust to be free of political accountability and influence. In contrast, their experience was primarily of a corrupt judiciary that answered to authoritarian political regimes and/or the financial incentives offered by those interested in the outcome of a case.

I am also mindful of the added fear that LGBTQ2 parents have faced in custody disputes - a fear that was only recently addressed with the passage of Bill 28, The All Families are Equal Act, that will come into force in Ontario on January 2, 2017. This legislation amends the Children’s Law Reform Act and many other provincial Acts to recognize the legal status of all parents regardless of sexual and/or gender identification, or of how the child was conceived, and ensures equal treatment for all parents and children in the province. Securing these rights for LGBTQ2 parents is the result of a Charter challenge launched by a group of LGBTQ2 parents against the Government of Ontario. As a family law lawyer, it is shocking to say it took 34 years after Canadians received their Charter of Rights and Freedoms, to grant LGBTQ2 parents equal rights.

Moreover, I am proud to say that one of the parents behind the Charter challenge has been a good friend for many years. It was, however, sad to witness her legal and emotional struggle to be recognized as an equal parent to her daughter when her spousal relationship ended, and she separated from the birth mother. The realization that the presumption of parenthood under the Children’s Law Reform Act did not extend to same sex mothers came with shock and disbelief. After the Rutherford decision in Ontario that allowed same sex parents to be registered on a child’s birth certificate, she believed it was no longer necessary to legally adopt her daughter in order to be recognized as her legal parent. Separation was a difficult time to learn that was not the case.

From my practice experience, I am also familiar with individuals where cultural tradition dictates marriages arranged by the parents of the bride and groom. The cultural consequences for families when an arranged marriage breaks down, can be quite different from those generally experienced in western cultures.

I will never forget the deeply emotional reaction of a much-loved relative when the Robert Latimer case was in the news after he ended the life of his severely disabled daughter. My cousin, who is my age, was born with profound physical challenges. Although her ability to communicate is limited to the Bliss Symbolics communication board that sits on the arms of her wheelchair, she let me know, in no uncertain terms, that no other person should presume to know when another’s quality of life has ended. The lesson from that time - and I believe this to have been something she said to me - is that no one can truly understand the small things that bring pleasure and comfort to another. It may be something as basic as fresh, clean bed sheets.

I also have the personal experience of being a white woman from a small farming community in eastern Ontario who, for the first time at age 42, entered a same sex relationship with a black woman who had spent her adult life out and proud, and also suffered from a painful and progressive autoimmune disease. This relationship brought with it so much that I now see, feel, and learn more about every day that, previously, I could only have witnessed from a distance, or learned about intellectually.

Through my partner I have come to know a young woman (now a family friend) who came to Canada many years ago as a refugee from Burkina Faso. While she does not  complain, she has shared with us the hardship of her life in Africa, as well as the stories about her family, and the people who raised her. We’ve seen firsthand her love for Canada, her incredible work ethic, and the strength of mind it takes to hold down multiple jobs to pay for her university education that now includes a Masters in Nursing Science. We also see her devotion to her church community and her determination to create new opportunities for herself. Her friendship has provided a very direct and personal example of the power, and many mutual benefits, of a welcoming immigration policy.

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

The role of the judge in a constitutional democracy is to interpret, uphold and apply the law as legislated by our elected federal and provincial parliaments, and to do so in a manner that is neutral and independent of the legislative and executive branches of government. The court's fundamental interpretive responsibility is carried out within a vast body of common law traditions and is subject to the essential requirement that the legislation accords with the Constitution. If the legislation in question is not consistent with the jurisdictional authority conferred by the Constitution Act, 1867 or the limits on our legislatures as set out in the Constitution Act, 1982 that includes our Charter of Rights and Freedoms, then it must be struck down as unconstitutional. This result is subject only to the saving provision under the Charter where the impugned legislation may be upheld, if found to be within the reasonable limits as might be demonstrably justified in a free and democratic society.

Many argue that the courts have become too activist since the Charter was enacted. It has been said that the courts threaten parliamentary supremacy, and thus democracy, in their interpretation and application of the Charter. I disagree. The Charter elevated our personal rights and freedoms to constitutional status. With that comes the protection of the Constitution, the highest law of the land, against which all other laws must be judged by an independent judiciary. However, the Charter also contains a notwithstanding clause that the legislatures can invoke and rely on to protect and uphold the impugned law. This provision protects and supports parliamentary supremacy but rarely has it been used by our governments. Legislators are subject to re-election, and they know that it is only in rare and very important matters that the electorate is likely to support upholding a law that the courts, as neutral arbiters, have found to infringe a constitutional right or freedom.

The role of the judiciary thus remains an interpretive one in  its duty to uphold the laws passed by elected legislatures. However, it is also a role that functions as a check on the exercise of legislative power and the potential for governments to act in ways that exceed their constitutional authority and/or infringe on the rights of its citizens.

The interpretive function of the courts in a constitutional democracy also feeds the development of the common law in ways that embody the principles and values of the Charter. In turn, the evolution in the common law often prompts statutory reform and, in this way, the law continues to change and move forward in a manner that reflects the changing needs and values of the society it serves. The common law and statutory changes in family law over the past 30 years provide ample illustration. Charter values find expression in many forms, ranging from the statutory embodiment of marriage as an equal partnership, to the equal rights of all parents to seek custody of their children regardless of gender identification, sexual orientation or the manner of conception, and the ability of same sex couples to marry and/or adopt children. The list goes on. Our understanding of family, of what constitutes a family, of how a family is formed, and the rights and obligations of family members when the unit breaks down, has changed and eventually, so too have our laws.

By upholding and applying the law as legislated, and by interpreting and applying the Charter, and carrying Charter values forward in the development of the common law, judges play a vital role in our constitutional democracy.

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

In the Superior Court of Justice, the primary audience is the litigants - the parties to the dispute. They must be and feel heard, and see reflected in the decision, proof that the judge has heard, understood, and considered their evidence and the position that he or she took in the case. Of these, the most important of the two is the losing party. That person is entitled to know, and understand, why he or she lost, and hopefully see the legitimacy of the decision.

The general public is a secondary audience. People need to know what the law is in order to live with secure and reasonable expectations. Civil and family law decisions infrequently appear in the newspaper, but it does happen. Moreover, the courts are open to the public. For criminal cases, the judge’s decision enables the public to hear about the competing principles at play that are fundamental to our liberal democracy.

The legal profession is also an audience. The law is not static; it is constantly evolving, and lawyers need to know the current law in order to properly advise their clients.

Similarly, academics form another part of the audience. Their commentary and analysis of decisions is also important to the development of the law.

The Court of Appeal may be an audience for the decision. I strongly believe that an important aspect of the role of the trial judge is to apply the law to the factual findings made, that can be supported by the evidence, and do so in a way that respects that case law that binds them such that it can, in turn, survive appellate scrutiny.

In short, the judge needs to write for different audiences and purposes in order to enhance understanding of the law and contribute to the development of the law.

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.

Growing up in a small farming community that had been home to both my parent’s families for generations is the experience that most defines me. The core attributes that I would bring to the bench are rooted in the values taught and learned in my youth, at home, and in my community.

Neither my father nor my mother had the opportunity to finish high school. Their labour was needed at home on the farm, as was often the case in those years for many farming families. The result, as I experienced it a generation later, was respect for higher education but it was an achievement that was neither assumed nor promoted as a necessary ingredient for a successful career. What was expected, and respected, was hard work. The belief was that if one was willing to work hard, a decent living and good life would follow. Work ethic was taught and demonstrated daily.

Small communities (mine had a population of 1800) have a way of teaching the importance of reputation. Everyone knows everyone. Family connections and friendships are layered and often run generations deep. My family ran a small, second-generation insurance business in town. Maintaining a reputation for honesty, integrity, and good service to clients and community was paramount. We were expected to behave every day in a way that was consistent with those values.

Humility was expected. Pretense and insincerity were questioned. The lesson was know who you are and be that person. Do not pretend or behave with self-importance.

Growing up with two sisters who were both much older meant that my home life was spent primarily in the company of adults. From an early age, I learned that if I wanted to participate in what was primarily adult conversation, I’d better have something worth saying. The lesson was to think before speaking - a message of caution that still resonates and guides me today.

Learning to think before speaking was unfortunately limited to English only conversation. I do not speak French and would welcome the opportunity to learn.

The environment of my youth did not provide cultural diversity, but it was a microcosm of economic and social diversity. The lesson was that the measure of a person lay not in wealth, occupation, social position, or level of education. It was a person’s sense of right, wrong, and fair play that was important and worthy of respect.

Adulthood and the opportunity for discovery that comes with age, opened my day-to- day life to greater diversity and the growth that it prompts. The most personal example I can offer is this. At age 42, I began a same sex relationship for the first time, and also for the first time, I experienced a profound fear of judgment and potential prejudice. It was an unfamiliar, unsettling fear at an unexpected time in my life that caused me to question much that I had not previously questioned. Ultimately, the benefit of my fear was the gift of greater trust in the people who matter most to me, and a deeper understanding of what it means to be truly tolerant and respectful of differences.

My life partnership now has a rich fifteen-year history. My partner is black and suffers from a painful disability. Her experiences, past and present, provide me with some exposure to her world, and, in turn, hopefully bring a degree of understanding to mine.

The belief that hard work alone would serve me well led to my initial decision to forgo post-secondary education in favour of finding a job. However, by my early twenties, I had begun to feel that I had missed something important - that there was so much that I had never been exposed to, nor knew to think about. So, when I made the decision to pursue an undergraduate arts degree, the goal was not only to graduate, but the experience itself. Law school wasn’t even a dream at that time. It was only later, when I realized the extent of my curiosity and willingness to work hard, that I began to think a law degree might be possible.

Like law school, seeking an opportunity to serve on the bench has not been a life-long goal. It is rather the culmination of life experience to date along with the professional skills and interests developed over my career, that bring me to this application and my desire to serve as a member of the bench. I believe that the time is now right for me to move from private service to public service.

My work over the past twenty-six years, representing individuals in the midst of marriage breakdown and difficult personal circumstances, has been challenging and rewarding, both personally and professionally. Doing the work well requires the development of good legal skills, good interpersonal skills, and good communication skills. I believe that I marshal and use those skills to the best of my ability to represent my clients well. I now hope to bring those skills to the authority and responsibility of the bench, to help litigants achieve resolution and move forward with their lives, whether by way of settlement or trial. Our system is so very expensive for litigants, both financially and emotionally. It is essential that parties be, and feel, well served when they need the help of a judge.

Listing the personal attributes and abilities that I believe equip me to hold and carry out the role of judge is not a task that comes easily to me. What I offer are words that I think and hope others, past and present, would use to describe me: honest and open-minded, analytical, and smart, reliable, humble, hardworking and with integrity, fair minded, can make tough decisions, tolerant and accepting of others, interested, engaged, team player, takes her job seriously but not herself. I also hope many would say that my good sense of humour includes the ability to laugh at myself.

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 do not believe I can add anything that has not been said already. Thus, I hope my application illustrates how my experiences have enriched my personal life and contributed to my professional life in the law. I am confident that I can bring to the bench values, and a face of experience, that will be recognizable to Canadians.