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What Role for “Judicial Shaming” in Family Law?

cost-award

What Role for “Judicial Shaming” in Family Law?

Although it was a non-Family Law case, a line in a recent Ontario Court of Appeal decision caught my attention.

In Yim v Song the appeal judge was asked to rule in Chambers on certain procedural points, after various pre-trial motions had already been held in connection with the fulfilment of certain undertakings made by each former business partner to produce information, and relating to various refusals to do so. Clearly exasperated by the litigants appearing before him, the Appeal Judge wrote:

The ultimate dispute between these parties has not yet proceeded to trial. Nevertheless, the appellants have already attracted two substantial indemnity costs awards and their poor judgment and unreasonable conduct in this litigation has drawn sharp criticism from motions judges. No amount of judicial shaming seems to have had the least impact, however, and what is now unfolding in this court is more of the same.

Indeed, on one of those prior motions, the presiding judge began the ruling this way:

Very few things that we see in the context of civil litigation are as disheartening as the typical undertakings motion. This is one of those.

… The matter was argued before me in Owen Sound on November 27, 2015. I thought for sure that the hearing would end up being unnecessary in that the parties and counsel would have resolved the procedural wrangling. I was wrong. The wrangling is not done quite yet. A costs award may do the trick.

Clearly, both the lower-court and appeal judges in this case saw the need to impose pressure – including financial pressure in the form of costs sanctions if necessary – to encourage these particularly litigants to act reasonably and cooperatively if possible, and to expedite what would otherwise deteriorate quickly into a long, costly, and acrimonious dispute.

The question that arose in my mind is to what extent can (or should) similar judicial admonishments and sanctions be used in Family Law hearings. Because of all the courts that rule over matters in Ontario, Family Court Judges are arguably the most put-upon in terms of having to deal with a relentless parade of acrimony, poor judgment, steadfast unreasonableness, emotionality, confrontation, and strategic procedural wrangling. It’s the nature of the beast.

So the question arises: Should judges employ more pressure in the form of “shaming” to get family litigants to wise up?

What are your thoughts?

For the full text of the decisions, see:

Yim v Song, 2016 ONCA 642 (CanLII)

Yim et al. v Song et al., 2015 ONSC 7605 (CanLII)

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