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Posts from the ‘Judges’ Category

Judge may ascertain child’s views and preferences through a judicial meeting

child 3

Judge may ascertain child’s views and preferences through a judicial meeting

Our summer Student Amelia Rodin recently researched the issue of Judicial Interviews of children, she notes that decisions regarding custody and access have an immense impact on the best interests of the child. In order to ensure that the best interests of the child are met, there are three commonly employed methods of incorporating a child’s views and preferences into the judicial process.

Representation of the child by a lawyer is perhaps the most prevalent method, and children are often assigned a lawyer from the Office of the Children’s Lawyer to represent their interests. Expert reports written by professionals such as social workers or psychologists are also used to communicate the child’s preferences to the court in an unbiased manner. Perhaps the least common method of ascertaining a child’s views and preferences is through judicial interviews, or meetings between a judge and child . Judicial interviewing has historically been a controversial method for determining a child’s views, and whether the court embraces this approach is largely based on the judges comfort level and training.

However, in appropriate situations, judicial interviewing may be an important supplement to legal representation and expert reports . In G. (L.E.) v. G. (A.) the court identified three main purposes for judicial interviews with children:

Obtaining the wishes of children; making sure children have a say in decisions affecting their lives; and providing the judge with information about the child.

An interview can occur at many different stages of a case, and in G. (B.J.) v. G. (D.L.), the court held that:

Judicial interviews can take place both at the more informal judicial dispute resolution stage, such as at a family case conference or a settlement conference, and during more formal court hearings and trials.

In the Ontario case P.L.M. v. L.J., Justice R.J. Harper conducted a judicial interview with a 12-year-old child for the purpose of hearing her wishes in regards to custody issues.

In this case, the child was not represented by a lawyer from the Office of the Children’s lawyer, but had seen a therapist who had submitted a report to the court. Despite the therapist’s records, there were concerns that the child did not feel heard by the court.

The interview was held privately in the judge’s chambers and recorded. In addition to the judge and the child, the court reporter, court services officer, and the child’s therapist were present.

Throughout the interview, the child was able to express feelings of parental alienation, and describe situations of deep conflict between her mother and herself. In consideration of the insights provided by the interview, as well as the totality of the evidence presented throughout the case, the judge ordered custody to the father.

For the full text of the decision, see:

P.L.M. v. L.J., 2008 CanLII 35923 (On S.C.).

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Disgruntled Dad Jailed for 18 Months for Sending Nasty E-mails About Judge

Angry male judge in a courtroom striking the gavel and pronounces sentence. Focus at front y very shallow depth of field

Disgruntled Dad Jailed for 18 Months for Sending Nasty E-mails About Judge

In an interesting U.S. case from Connecticut, the husband in a divorce proceeding was evidently unhappy with the way in which the case was being handled by the judge assigned to his matter. In a moment of unbridled anger, he sent a private e-mail about the judge to several of his friends, essentially threatening to shoot her. The e-mail described where the judge lived “with her boys and nanny”, and added that there are:

“…245 yards between her master bedroom and a cemetery that provides cover and concealment”.

The e-mail continued:

“They can steal my kids from my cold dead bleeding cordite filled fists….as my 60 round mag falls to the floor and I’m dying as I change out to the next 30 rd.”

The father had also written disparaging comments about courthouse officials, whom he called “evil, self-appointed devils”, and had warned in the e-mail that when those officials “figure out that they are not protected from bad things and their families are taken from them … then the system will change.”

Although the judge did not receive the threatening e-mail directly, it came to her attention through a lawyer who had been forwarded parts of it by a client, and who contacted the courthouse about it.

The father was arrested, and criminally charged with first-degree threatening, disorderly conduct, and breach of peace. The evidence at his subsequent criminal trial showed that he had voiced “strong sentiments” against the judge in the past, by way of other e-mails, in a radio interview, and in his Facebook posts. It also established that he owned four guns that were capable of shooting longer distances.

The father defended his conduct by stating that his e-mail was merely intended to vent his frustrations with the family courts and investigating police, adding that his life and career are ruined due to his divorce and related proceedings. He also raised various arguments based on freedom of speech, but those were rejected at the criminal trial; the court found that although distasteful, crude, and obnoxious words might be protected by the U.S. Constitution, words that amount to a threat that “carries fear and disrupts a person’s sense of safety and security” will still be criminally punishable.

Although the 50-year old father of two was described as a loving dad, hardworking, intelligent, and an active volunteer in the community, his lawyer’s calls for leniency were rejected partly because had had shown no remorse over his conduct. He was ultimately sentenced to five years’ imprisonment, with all but 18 months suspended.

In response to his sentence, the father stated: “I’m OK with what I have to face,” adding that “It’s my children that are suffering.”

For the full text of this U.S. decision, read here:

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Was Judge Correct in Assessment of Litigants, Lawyers, and the Legal System?

puzzeled

Was Judge Correct in Assessment of Litigants, Lawyers, and the Legal System?

In a recent Ontario family case called Hutton v. Hutton, I read a few passages from the judge’s reasons that gave me pause.

There, the wife was representing herself in what was otherwise a routine proceeding for divorce and the equalization of net family property. The husband took the relatively-unusual step of bringing a motion to strike out about 10 paragraphs of the wife’s pleading, claiming that they were irrelevant, prejudicial, scandalous, embarrassing, and will delay the fair trial.

The motion judge said:

The law in family law cases concerning pleadings is the same as in non-family civil matters — that is to say – relevance. However, in view of the personal emotional issues that generally drive the legal issues, the courts have taken a more relaxed approach and tolerate an expanded view. The dramatic increase in non-legally trained self-represented litigants has hastened this relaxed approach to the point that lawyers are frequently persuaded by their clients to adopt a stance that the opposite party must be portrayed as an evil person in order to guarantee success. This inevitably requires that every real or imagined slight or disagreement is seen to take on major significance in support of the description of the opposite party. As might be expected, the opposite party feels obliged to retaliate. The real issues become lost in the accusations, denials, counter-accusations, and counter denials. Each party’s perceived baggage and the rights and wrongs of it all become the cross the court must bear – running the risk of obscuring the real issues. In other words, the battle becomes the central focus – not the outcome.

Whether to the average member of the public this comes off as insightful or else disheartening, it struck me as being unusually candid for a judge. The judge also turned his scrutiny to the members of the legal profession: In the context of pointing out that a motion to strike pleadings is relatively uncommon in family law matters, the motions judge continued:

On the one hand, it can be argued that family law disputes for the most part are so fraught with emotion that we should patiently focus on the issues without regard to the clear violations of the rules. On the other hand, lawyers must take some responsibility and resist the temptation to be the hired gun whose mandate is to destroy the reputation (if not all the worldly goods) of the opposite party. I accept that a lawyer who adopts this principled legal approach may have an unhappy client. However the alternative demeans our legal institutions and those who tirelessly work to make it the backbone of our democratic society.

Ultimately, the judge ruled that 6 of the 10 impugned paragraphs in the wife’s pleadings should indeed be struck, but in doing so he took the unusual step of peeling away a little bit of the veil of idealism over the legal system.

Is the judge right? What are your thoughts?

For the full text of the decision, see:

Hutton v. Hutton, [2015] O.J. No. 5606, 2015 ONSC 6683

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

In a Rare Ruling, Appeal Court Declares Ontario Judge Was Biased

A statue entitled 'Justice' in front the Supreme Court of Canada is framed with the Peace Tower on Parliament Hill in Ottawa April 24, 2014. The Supreme Court of Canada will deliver its opinion Friday on how Canada's unelected Senate can be reformed or abolished. REUTERS/Chris Wattie (CANADA - Tags: POLITICS) - RTR3MJ6J

In a Rare Ruling, Appeal Court Declares Ontario Judge Was Biased

Virtually anyone who has been involved in (or dragged through) litigation will get the feeling – at some point or the other – that the process is not fair.

But in an uncommon ruling in one case, that suspicion was confirmed: the Ontario Court of Appeal ruled that an experienced judge (Justice David L. Corbett) who had heard various motions in a dispute over franchise agreements, had likely been biased against one of the parties to the litigation, to the point where a new hearing had to be ordered.

In Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, the case involved numerous plaintiffs and numerous defendants in a dispute over the alleged breach of various franchise agreements and breaches of legislation governing franchises. The Ontario judge was asked to hear and decide certain jurisdictional issues, most notably on the question of whether a single proceeding would be the best way to resolve the disputes between all the parties, and whether it was most appropriate to litigate the dispute in Ontario, or else in California.

In this context, there were several hearings to determine the proper jurisdiction and method of proceeding. However – as the Ontario Court of Appeal later confirmed – the judge through his conduct and various conduct demonstrated a clear bias towards some of the parties.

In its ruling the Appeal Court illustrated some of the mis-steps by the judge throughout the proceedings:

• He openly found fault with some of the parties and their counsel for the manner in which the motion – which he declared as being “a colossal waste of time” – was being brought. For example, at one point the judge said:

A lick of common sense should have made it clear that this motion, as framed, was doomed from the outset. So why bring it? If the honestly held belief was that this case ought to be pursued in California, all I can say to the defendants is “give your heads a shake”.

• He made various derisive comments throughout the motion hearings, and repeatedly criticized a lawyer’s advocacy skills, knowledge of the law, and the handling of the matter.

• He appeared to go out of his way to assist the opposing parties, by subtly curtailing the presentation of the case against them. For example, at various points in the proceedings he rhetorically asked counsel “what was the point?” of his line of questioning and intimated that the cross-examinations were “frustrating” and “interminably, circling around and about, in and around.”

There were other procedural irregularities which called the judge’s impartiality into question. For example:

• He adjourned a motion on his own initiative, to give some of the parties a chance to correct a flaw that he identified as being “fatal” to their position.

• He arbitrarily cut short a motion at the half-day point, even though it had been scheduled for a full day and even though some of the parties had not had a chance to give their oral arguments.

• He took nine months to release one of his rulings on the motion, and it contained after-the-fact reasoning designed to forestall arguments that he knew would be raised on a later appeal.

The evident bias did not end with the proceedings or even the ruling on the motion itself: The Judge also penalized some of the parties with $50,000 in costs, having found that their motion was so devoid of merit, and was brought in so time-consuming, expensive and impractical a manner, that elevated costs were appropriate.

In the end, and after reviewing the proceedings and considering the cumulative effect of the judge’s improprieties, the Appeal Court arrived at an uncommon conclusion that judicial bias and lack of impartiality had been evident. As the Court wrote:

I have no doubt that the motion judge was well-intentioned. I have no doubt that he put a great deal of effort into resolving the jurisdiction issue. However, my review of the three endorsements leads me to conclude that the motion judge’s actions gave rise to a reasonable apprehension of bias. He made unwarranted negative comments about the appellants – their counsel, their position, and their arguments – prior to the conclusion of argument and arbitrarily curtailed argument. He then wrote reasons that went beyond reflecting the reasoning process and entered the fray as an advocate for his actions and decisions in the Second Endorsement.

In my opinion, the cumulative effect of the motion judge’s conduct is that an informed, reasonable observer, viewing the proceedings as a whole, would conclude that the appellants did not receive the fair hearing to which they were entitled.

I am therefore of the view that the decision must be set aside.

For the full text of the decision, see:

Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Judge who is (or will be subject) to a Restraining Order after challenging public defender to fist fight to lose his job – video

Wednesday’s Video Clip: Judge who is (or should be subject) to a Restraining Order after challenging public defender to fist fight to lose his job

We first took a look at this video in an previous blog. The ABA Journal reports:

Rejecting a recommended 120-day suspension and $50,000 fine for a Florida judge who challenged a public defender to a fistfight last year, the state supreme court on Thursday removed him from office.

Calling the June 2014 incident in Brevard County Judge John Murphy’s courtroom a “national spectacle” that was “fundamentally inconsistent with the responsibilities of judicial office,” the Florida Supreme Court said removal was the appropriate sanction…

So what do you think?  Was this Judge entitled to have a ‘bad day’ or should he be removed from he bench?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Judges Speak Out About Self-Represented Litigants

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Judges Speak Out About Self-Represented Litigants

As family lawyers, we are well-aware of the common criticism by those involved in family disputes and litigation: that hiring a lawyer is expensive.

Although it may seem self-serving to point out the benefits of retaining experienced family law representation for your case, we can do one better: Here are some illustrations of the types of comments made by judges themselves about the difficulties of untangling the merits of a case when self-represented (or otherwise unrepresented) litigants – admirably as they may try – are unable to put forward their best case due to the lack of legal training.

For example, in a case called Leigh v. Milne, the Court of Appeal lamented the slow pace at which the family litigation had proceeded:

The Process

At the outset, let me address [the wife’s] concern about the process, culminating in the order under appeal. This proceeding on appeal is a graphic example of how difficult it is for a self-represented litigant to effectively navigate through the legal system. While the Courts struggle to adapt to the ever-increasing numbers of self-represented litigants, the legal system remains a process which works most effectively for litigants who are represented by lawyers. Judges expect that lawyers will police one another in order to keep a case moving forward at an acceptable pace and, when necessary, seek the assistance of the court to do so. Unfortunately, this leaves proceedings where one and, especially, where both of the litigants are unrepresented, susceptible to being unreasonably delayed by the party who does not want the matter to proceed. This is what occurred here.

In the recent Ontario decision called Szakacs v. Clarke, the court complained about the quality of court documents that had been filed in connection with a family case:

In self-represented litigation, the “pleadings” rarely reflect meaningful details of the issues to be tried. In this case, after reviewing the various orders in the trial record, I ventured further and read the notices of motion and the supporting affidavits leading to those orders for the purpose of learning the specifics of the dispute. This allowed me, when the parties were testifying, to raise certain matters that they had omitted or had wrongly concluded were unimportant. A trial judge should not be put in the position of having to find, present, argue and decide a case. Wearing that number of hats is unbecoming.

Finally, courts are mindful of the potential unfairness to the other side. While being willing to recognize that – out of a sense of judicial and procedural fairness – a self-represented litigant should perhaps be given a little more lee-way in connection with having to follow court rules and procedures to the letter, the court must still ensure that both sides of a family dispute get the fair hearing to which they are entitled. This was pointed out in a case called Baziuk v. Dunwoody, where the court said:

The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party.

The point to take away from this, is that the decision to represent yourself in your family dispute may seem cheaper financially, but may have hidden costs in connection with the judge’s own perception and assessment of the merits. Make sure you make the right decision for your particular case.

For the full text of the decisions, see:

Leigh v. Milne, 2010 NSCA 36

Szakacs v. Clarke, 2014 ONSC 7487

Baziuk v. Dunwoody (1997), 13 C.P.C. (4th) 156; [1997] O.J. No. 2374 (QL) (Ont. C.J. (Gen. Div.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Judicial Quips of Mr. Justice Quinn of the Ontario Superior Court of Justice

 quips

 

Judicial Quips of Mr. Justice Quinn of the Ontario Superior Court of Justice

I’ve posted several times about the funny and oh-so-quotable judgments of Mr. Justice Quinn of the Ontario Superior Court of Justice. While Justice Quinn clearly has a good sense of humour, he is certainly not the only member of the Bench who has a way with words.

In the recent decision in Martin v. Czarniecki, 2013 ONSC 46 (CanLII) [Link] http://canlii.ca/t/fvm3h the judgment started with some almost-poetic and poignant observations about the nature of Family Law disputes:

Almost all family law cases involve some degree of sadness – sadness for what was but is no longer, sadness for what might have been, sadness for broken promises and betrayals, sadness for lost opportunities, sadness for wasted time, energy and money, and all too frequently sadness for the battles still to come.

Later in the judgment, the Court was somewhat more direct:

The parties find themselves in this situation due to a litany of significant errors of judgement, misunderstandings, miscommunications, lack of communication, mistrust, and, occasionally, deliberate deceptions.

Another Judge with a literary bent is Mr. Justice Langdon, who was asked to rule on the proper sentence to be imposed in a criminal case called R. v. M.J.O., 2005 CanLII 50809 (ON SC) [URL: http://canlii.ca/t/1mldd]. Justice Langdon began his lengthy opinion with the following:

Introduction

[1.] In 1958 I entered law school. In the 1958-59 academic year I enjoyed the great privilege of being taught criminal law by G. Arthur Martin, Q.C. He was probably the finest criminal lawyer in Canadian legal history. I well remember my surprise when, in his opening lecture, he stated to the class that the least expensive way for society to deal with a car thief would be to give him a car. Of course, he was right. But society simply does not accept as justice that a criminal should be rewarded for his acts. The corollary of that position, however, is that society must pay the cost of due process. That is expensive.

[2.] Hundreds of thousands of dollars have gone south in the prosecution of these proceedings. Nothing would please me more than to have them end here. Sadly, we know that this matter is headed for appellate review. So be it.

[3.] Mr. M.J.O. has taken to these proceedings an inclusive approach to the admission of evidence saying that he wants all the evidence to be heard so that the truth can be discovered. He has testified and has told us his version of the truth. Other witnesses have testified to sometimes very different versions of the truth.

[4.] I have been a lawyer and a judge for 42 years. I do not have a monopoly on being right. On neither of the two occasions when I was appointed a judge, was I given a crystal ball that enabled me, either to look back, and find the truth infallibly, or to look forward and predict the future infallibly. I have been listening to witnesses for 31 years. I try to do so carefully and thoughtfully. I cannot promise to Mr. M.J.O. that what I have found is the absolute truth completely free of error. I have struggled to do that. However, unless I completely misapprehend the evidence, what I have found is the truth that the legal system will accept.

[5.] There is an old saying to the effect that one should be careful about what one asks for, lest one receive it. Because of the volume of material that I have to deal with, I must necessarily paint with a broad brush. What follows is the truth about the life of M.J.O., as I find it.

Court cases are not always the most interesting to read. Some cases offer pleasant little literary surprises.

 

Should Courts Be Allowed to Cut-and-Paste Their Reasons?

cut and paste

Should Courts Be Allowed to Cut-and-Paste Their Reasons?

Just this past week, the Supreme Court of Canada considered an interesting question: In writing their judgments after a trial or hearing, are judges allowed to do large-scale cutting-and-pasting of other people’s written argument?
The answer is – apparently – “yes”.

The factual background of the case involved a negligence action in which a baby suffered brain damage during birth, and developed cerebral palsy subsequently. The mother had delivered a first child C-section; the second baby was delivered via an induced vaginal birth. This decision put her into a high-risk category, and the legal issue was whether she had given informed consent.

At trial, three doctors were found liable in negligence, and the mother was awarded $4 million in damages.

However in written award to that effect, the trial judge’s reasons consisted largely of reproduced portions of the submissions of the mother’s lawyer. Of the 368 paragraphs of the written decision, 321 were cut-and-pasted, and only 47 were in the judge’s own words, including the final conclusions.

On appeal, the Court set aside the trial judge’s reasons because of the extensive copying, and ordered a new trial.  A later appeal went all the way to the Supreme Court of Canada.

The Supreme Court of Canada pointed out that it is not prohibited for judges to include the work of others in their reasons. Indeed, it concluded that judicial copying was a “longstanding and accepted practice”, and was becoming easier to do with the introduction of the computer and the use of electronic submissions by lawyers.

The Court pointed out that it was not the copying per se that makes the process of judgment-writing unfair: it is the impression that the judge failed to independently and comprehensively assess the issues and arguments raised. The court wrote:

In summary, courts in Canada and elsewhere have held that copying in reasons for judgment is not, in itself, grounds for setting the judge’s decision aside. However, if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside.

After looking at all the elements of the negligence case before it, the Supreme Court of Canada ultimately held that despite the trial judge’s very extensive copying, the decision should not be set aside. There was nothing to suggest that the judge was not impartial or that judicial integrity was not maintained. The award was overturned for other unrelated reasons, however).

How would you feel if the judge’s decision in your Family Law was mainly a cut-and-paste job?

Should judges be prevented from doing this?

For the full text of the decision, see:

Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII)  http://canlii.ca/t/fxkwj

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.