Do judges really think about the consequences of their orders for the spouses in their courtrooms? Do they?
I have many friends and colleagues who have become family law judges over the years. Most of them are enormously committed to families and to children. Most of them are people I was proud to see become judges, people I looked up to. And I want to look up to judges, even after 28 years in practice. I want judges to be knowledgeable in the law, respectful of everyone in their courtrooms, hard-working, and concerned about children.
But I have recently seen several decisions by trial judges, judges of first instance, and some by appeal court judges, which make me very concerned that judges are losing touch with real people and their lives.
Some of these decisions are just disconnected from reality. Some have consequences that will cause continuing litigation and acrimony. I want to say to these judges: didn't you think about that possible outcome? Didn't you anticipate that risk? These are real people in your courtroom.
A motions judge hears a request for interim retroactive child support and orders more than $40,000 of retroactive child support. The judge declines to call it a variation and insists it is a recalculation. The judge also refuses the husband payor's request for cross-examinations.
The appeal court sets aside the $40,000 retroactive child support award on procedural grounds and says the wife may actually have been entitled to the amount on the merits. This is a devastating result for the wife. She cannot afford the first motion, let alone the appeal, or the re-hearing on the merits. Did the motions judge think this was a positive result for the wife? It was not.
A trial judge in a 10-day trial is close to retirement and not very interested in family law, which is regrettably clear on the record. The trial deals with every possible family law issue, including a constructive trust claim against a family farm. The trial judge's reasons are unclear and inadequate on many issues, and an appeal results.
The appeal court allows the appeal only on some issues, and sends those back for a new trial. These parents cannot afford a second trial, but are unable to resolve the dispute. All the judges involved here failed this family. And nobody won this one.
A trial judge in a six-day trial refuses a mother's request to relocate with her one-year-old child to Alberta. The parents' relationship and marriage lasted less than a year total. The mother appeals. It takes 13 months after the trial for the appeal to be heard. The appeal judge takes eight months to give the decision and orders a new trial. After eight months, the appeal judge should have decided the case on the merits. Another trial on the relocation issue is proceeding now, three years after the first trial.
Judges in two separate cases included provisos in final orders that were not requested by any party nor argued by any party in the case. The provisos were never mentioned in either case. The judges just thought up the provisions themselves, and gave nobody a chance to make submissions on these issues. In one case, the rogue provision was extremely significant, and of very wide and binding precedent value.
An appeal court awards costs of two levels of appeal against two mothers who were the respondents in related appeals (which means they were successful at the previous hearing). The two mothers have eight children between them, are stay-at-home moms, and are married to husbands who earn $40,000-$50,000. What part of this costs decision is just? What is the effect on the eight children?
It is very difficult for a lawyer to criticize a judge publicly. Lawyers are afraid to do it and therefore do it rarely. In these cases, all the judges involved actually hurt these parents and these children by their decisions.
Some hurt them by taking far too long in a process that already takes far too long. Some hurt them by requiring additional and acrimonious litigation that none could afford. All these judges failed these families and children.
Carole Curtis is a family law lawyer in a three-lawyer firm in Toronto. She can be reached at firstname.lastname@example.org