Canadian Justice System Rankles Canadian Justice
As I’ve reported in the past there has been no shortage of noteworthy decisions from Justice Pazaratz. The case of Chree v. Chree is one of several in which he critiques the Canadian justice system, this time for the shortcomings of what is essentially a bifurcated system.
The facts involved two separated parents who were now each living in different provinces. In such scenarios, Canadian law allows for one party in any single family law dispute to pursue certain proceedings and remedies in his or her home province, while the other party does the same in another province. But the court order made by a judge in one jurisdiction must often be confirmed by a second judge in the other jurisdiction.
Essentially, it’s a two-step, separate judge/separate hearing system.
In a ruling which sharply critiqued that system for being procedurally inelegant, duplicative, and challenging for judges to work within, Justice Pazaratz began this way:
There’s an old saying: “Two Heads Are Better Than One”.
But not when it comes to trial judges.
The facts involved the parents of two children who had divorced. The mother was living in Ontario with the children, and the father had moved away to Nova Scotia. A court in that province had ordered him to pay child support, which he completely failed to do. He eventually brought a motion to a Nova Scotia judge, asking to have his support obligations changed.
Although the mother was not required to travel from Ontario to appear on that motion (nor did she do so), under the bifurcated system the Nova Scotia order was rendered merely provisional in nature, and still had to be brought before an Ontario judge for confirmation, variation, or rejection.
Enter Ontario Superior Court Justice Pazaratz. Commenting on the two-step system, he wrote:
Two judges. Each hearing different parts of the case. On different dates, many months apart. Having to make decisions on the same case.
It may sound good on paper.
It may even seem like the only practical way to deal with motions to change support, where parties live in different parts of the country and neither can afford to travel.
But except in the simplest of cases, it creates an almost impossible task for judges …
For one thing, there were significant evidentiary hurdles to be faced by each of the judges who were involved:
But the problem with this procedure is that neither court hears from both parties at the same time. The court hearing from one party may not know whether there might be evidence contradicting that party’s position.
But what if the first judge fully believes the Applicant, and the second judge fully accepts the contradictory evidence of the Respondent?
In Justice Pazaratz’s view, efforts to bridge the evidence gap, for example by using teleconferencing or other measures, did not always solve the problem.
While conceding that the two-step system aimed to relieve unfairness for parents living in different provinces, Justice Pazaratz felt that it gives rise to an extensive list of procedural challenges and shortcomings. And while Canadian legislation does provide for reciprocal enforcement of certain support orders (for which the father’s particular order was ineligible), similar concerns still arise in those kinds of proceedings as well. The Justice capped off his exhaustive list of detailed concerns by asking simply, “When will it end?”
Justice Pazaratz has certainly used his family cases as a soapbox for venting his broader concerns over how the Canadian justice system works – or doesn’t work. But perhaps it begs the question: Is this an appropriate role for a judge to take? And if so, is a family law proceeding the right place for a judge to air his concerns and criticisms?
For the full text of the decision, see:
Chree v. Chree, 2015 ONSC 6480