In a ruling that’s provoking divided reaction among the bar, the Divisional Court has set aside the order of an Ottawa judge who “effectively bullied” an Iranian family law litigant into accepting his ex-wife’s position on support.
“I think the judge was trying to give Mr. Rastegar a reality check,” says James Morton of Steinberg Morton Hope & Israel LLP of Siahbazi v. Rastegar.
“That is the job of a judge in settlement conferences: to be blunt and direct.
They are there to give their advice about what they believe will be the best path for the individuals involved given the law and what will lead them to the best settlement for both parties.
Yes, some of his comments were perhaps out of line, but I would venture to say many were not.”
But noted lawyer Clayton Ruby sees the issue differently. “It’s terrible,” says Ruby.
“I don’t think it’s a case of the judge being blunt. I think it’s a problem of being ignorant. It shouldn’t happen.”
The comments follow the Divisional Court’s ruling in Siahbazi that set aside Superior Court Justice John McMunagle’s May 2011 order in the case. According to the Divisional Court, the judge had “crossed the boundary of appropriate judicial comment.”
The April ruling found McMunagle had used his personal experiences and opinions about Iran to make inappropriate references to Majid Rastegar’s culture, “belittled and criticized” him without giving him a fair opportunity to comment, misinformed him about the law, and denied him procedural fairness.
McMunagle was presiding over a settlement conference between Rastegar and his ex-wife, Mojgan Siahbazi, at the time of the comments.
Siahbazi’s settlement conference brief had asked for a temporary order for child support but didn’t seek one at all for spousal support.
According to the Divisional Court, the trouble arose for McMunagle when he approached the conference “determined from the outset to finally resolve the issues.”
“You don’t get to call the shots anymore,” McMunagle told Rastegar during the conference.
“All you get to do, sir, is write a cheque, straight up. I know that’s not how they work in different countries, and particularly I have some knowledge of Iran.”
Prior to hearing any evidence or submissions, McMunagle also told Rastegar his Iranian marriage contract was “not worth the paper it’s written on” and was “not a legally binding contract.” As a result, he refused to put any weight on it.
When Rastegar suggested that McMunagle was “kind of not impartial about whatever happened back in Iran,” the judge interrupted him.
“I have some knowledge of Sharia law and we all know how badly women are treated under Sharia law,” he responded. “We don’t have people being stoned to death in this country because they happened to look at a man or they’re not wearing a veil or whatever.”
McMunagle ordered Rastegar to pay about $33,000 in retroactive child support. He also ordered him to pay retroactive spousal support for 2009 and 2010 of $14,808 and $510 per month in ongoing spousal support.
While Siahbazi hadn’t initially sought spousal support in her order, McMunagle added it in anyway and she agreed.
According to the Divisional Court ruling, McMunagle based his order on the discrepancy in the parties’ incomes and DIVORCEmate calculations prepared by counsel for Siahbazi.
When Rastegar asked how long he’d have to pay spousal support, McMunagle told him “until there’s no difference between what you make and what she makes.”
McMunagle also imposed the retroactive child support obligation without any consideration of the criteria outlined by the Supreme Court of Canada in D.B.S. v. S.R.G., the Divisional Court found.
“In this case, the conference judge was only at liberty to make final orders on consent,” the Divisional Court found.
“There is no doubt from reading the transcript that the consent or acquiescence of Mr. Rastegar was conscripted by misinformation and coercive pressure from the presiding judicial officer.
The lack of true consent in this case vitiates the terms of the order in relation to retroactive payments and ongoing spousal support.”
Siahbazi’s lawyer had drafted her order for child and spousal support over the lunch break, according to the latest ruling. Although Rastegar verbally agreed to the order, he never signed it.
The Divisional Court decision has raised eyebrows among some members of the bar who say McMunagle’s actions highlight larger issues about the province’s justice system and the treatment of individuals in court.
Morton, for example, says while McMunagle’s interruptions and statements about Rastegar’s culture were unfortunate, judges should be able to speak bluntly to the parties before them.
He notes that preventing judges from speaking openly in settlement conferences could create significant problems that would ultimately cost time and money.
“Settlement conferences are necessary for a more efficient and effective justice system,” says Morton.
“Moving cases from trial to settlement makes sense financially and it saves everyone time. If judges can’t speak bluntly about what will and will not work for a client in their particular case, the conference can’t work.”
But Ruby says the case highlights broader issues about diversity among the judiciary. “If you look at it this way, of the last 100 judicial appointments by the Tories, 98 per cent of them have been white men.
Perhaps if we increased diversity among the judiciary, there would be more respect for different cultures.”
McMunagle isn’t the only Ontario judge to have raised eyebrows recently through pointed comments in the courtroom.
In March, for example, the Ontario Court of Appeal criticized Ontario Court Justice Howard Chisvin for throwing out a slew of cases after he grew impatient while waiting for a Crown attorney to return to the courtroom.
Morton, however, says judges’ jobs are difficult and cautions against going too far in censoring them from being blunt and honest about what’s necessary to make the justice system run effectively.
“Some of the statements Justice McMunagle made were really unfortunate, but at the same time a judge can’t pussyfoot around such important issues,” says Morton.
“I think it’s a good thing that we have such strong voices from our judges and I think we should be very careful not to have the pendulum swing entirely the other way.”