When a Judge “Breaks Up” with a Squabbling Couple
The scenario was not atypical: The parents of a now four-year-old girl had spent the past several years since their separation making numerous trips to court to resolve various custody and access issues. Historically, these disputes had involved significant issues around custody and access but lately had included clashes over more minor things like whether the girl was getting regular naps when with the father, and whether continued breastfeeding and co-sleeping with the mother was impacting her relationship with both of them.
Indeed, each parent’s complaints about the other sometimes drifted into the more petty and mundane: The mother, for instance, had complained that when the girl was on overnight visits with her father, she was distracted during their bedtime FaceTime sessions, because she had been allowed to watch cartoons immediately beforehand. In turn, the father had objected that the mother routinely sent his emails to her junk folder unread (which the judge decried as “sheer nonsense” which “must end immediately”).
Against the backdrop of these unresolved matters – and after making orders to specifically address those already before him – the judge essentially opted out of making any further rulings in the case between this particular couple. The judge wrote:
I believe the time has come for me to direct that I will not in future hear matters pertaining to these parties, unless there is some emergent situation and no other judge is available. I say this because I now have a real concern that rather than struggle to reach a fair compromise on issues, these parties, and particularly the Father, will elect to have someone who knows all about them resolve the issue. In a sense, I am a known quantity. I believe the time has come for these parties to face perhaps an unknown quantity, a new judge in this court, if they cannot, including with the help of, for example, a parenting coordinator, reach agreement themselves.
I think having to face a new judge who knows nothing about them will add a strong incentive or impetus to their resolving issues outside court, rather than litigating them before a known judge.
In other words, the judge decided that it was in everyone’s best interests, most especially that of the 4-year-old girl, that he step away from adjudicating on the dispute in order to give another judge a “fresh eye”, and to encourage the parties themselves to settle their differences without court interventions.
Was the judge’s idea a good one? What are your thoughts?
Z.S.R. v. R.S., 2016 BCPC 200 (CanLII)
