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Some Words of Wisdom from an Ontario Family Judge


Some Words of Wisdom from an Ontario Family Judge

I have written before about how Ontario family law judges have sometimes managed to issue comical judgments in the course of deciding difficult cases.

But a recent decision shows a more sombre side of that judicial decision-making, and illustrates the unsettling, harrowing facts and scenarios with which family judges must often grapple.

In his decision in A.A.-L. v. M.L, Mr. Justice Conlan opens the narrative with the following words:

To say that this is a sad case would be an understatement. To describe this litigation as protracted and acrimonious would be a gross understatement.

He then goes on to describe the family as consisting of the two parents, two children from the mother’s previous relationship – both of whom have special needs – and two additional children that the parents had together.

One of those, a daughter, died tragically of cancer at the age of 5. Yet, as Mr. Justice Conlon describes, “rather than bring the parties together, that death only drove them further apart.

He then laments the tragic progression of the litigation between the couple as follows:

The Litigation History

This Application has been outstanding for far too long. There have been numerous Temporary Orders made by various Justices. The parties have failed or refused to cooperate on the most private and generally non-litigious matters, including for example visitation of their dying daughter, S., in the hospital and what would become the inscription on her tombstone.

Speaking bluntly, the thought of a Judge having to sort out access to a dying child and what the words should be on her gravestone is depressing to say the least. …

If the thought of the Court having to make an Order about what would be etched on the little girl’s gravestone does not turn the reader’s stomach, then perhaps this will. The parties also fought later on about a flower bed around the headstone. Imagine that.

After reviewing the facts in detail and issuing a decision on the many substantive issues that were in dispute between the parents, Justice Conlon added the following words in conclusion:

A Final Observation

I am just one judge in one small pocket of Ontario. But I encourage any family law litigant who cares to listen to think long and hard about the impact of his or her actions during the litigation process on the ultimate trier of fact.

If a parent cannot bring him or herself to reasonableness for the sake of the children, then the parent should do so for purely selfish reasons. A party’s credibility at trial will depend in large part on the reasonableness of his or her conduct along the way.

A parent who has fought every issue as if it was the last stand at Juno Beach, showing no compromise or flexibility throughout, hardly comes to trial with clean hands.

We are past the study phase of how adult conflict affects children. Nobody disputes the proposition that high conflict between parents who have separated or divorced is likely to have a negative impact on the children. So parents should pick their battles. Do not disagree just for the sake of disagreement or because of some default position that anything suggested by the other side must be stupid because it came from “the other side”.

Parenting is a tough job. There is no advantage to making it even tougher by engaging in perpetual combat with one’s former partner. It does the children no good. And it does the parent no good at trial.

For the full text of the decision, see:

A.A.-L. v. M.L., 2013 ONSC 7269 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.