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


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

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About the author

Russell Alexander

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