Family Law

Justice Quinn, a judge of the Ontario Superior Court of Justice, has delivered a judgment which many of us with any judicial capacity would have loved to have delivered and in a case which many lawyers have seen too often. It is almost certainly the walk-away winner of the 2011 Family Court Judgment of the Year award! On any basis, it makes great reading, as well as being a well measured and balanced judgment.

The facts were simple: Larry and Catherine married, had two children, a daughter aged 13 and a son aged 11. Catherine left and moved in with Sam who worked for the same company as Larry and with whom he had previously been best friends. There were issues of residence and contact, property and maintenance. And so the turmoils began.

Justice Quinn commences his Judgment: "Paging Dr. Freud. Paging Dr. Freud."  He continues: "This is yet another case that reveals the ineffectiveness of the family court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment."

He expresses the angst of all judges dealing with a litigant in person: "Presiding over a family trial with many issues where the parties are self represented is a solitary and unfulfilling experience. What evidence was not brought forward because the parties failed to appreciate its relevance? What evidence that was introduced would have been recast under skilful cross-examination? With whom do I play devil's advocate on questions of law?"

The judge quickly got to the heart of the matter: "The source of the difficulties is hatred: a hardened, harmful, high-octane hatred. Larry and Catherine hate each other, as do Larry and Sam. This hatred has raged unabated since the date of separation. Consequently, the likelihood of an amicable resolution is laughable (hatred devours reason); and a satisfactory legal solution is impossible (hatred has no legal remedy)."

At one point in the trial he asked Catherine: "if you could push a button and make Larry disappear from the face of the earth, would you push it?"  He records her "I-just-won-the-lottery" smile implied the answer he expected!

"Catherine and Larry were married on October 7, 1995. If only the wedding guests, who tinkled their wine glasses as encouragement for the traditional bussing of the bride and groom, could see the couple now."  He continued cynically: "I am prepared to certify a class action for the return of all wedding gifts."

He recorded: "Some family trees have more barren branches than others."  With reference to Larry's extramarital affairs, the judge recorded that "Larry's father was married five times, in addition to going through several relationships".  He pondered: "Perhaps there is an infidelity gene".

The case was riddled with death threats, especially from Catherine to Larry. Particularly she threatened the involvement of the local Hells Angels branch of which her niece was engaged to a member. The judge took judicial notice of the fact that the Hells Angels Motorcycle Club is a criminal organisation and commented that the niece had made a poor choice. He recorded the continued series of death threats, occurring before and during access visits and in many public places. As he said, "Catherine and her relatives are one-dimensional problem solvers."

Larry's girlfriend, Sandra, did not fare better: "I find that Sandra does not exert a positive gravitational pull in this dysfunctional family constellation."

Problems with access began early and continued right up until trial. The judge commented on the mother's denial of contact: "This [denial of contact] was a remarkably bold step on her part, taken without reasonable excuse or explanation. Most litigants are on their best behaviour as their trial approaches. Her conduct reflects the lack of respect she has for the legal system and the utter disregard with which he treats Larry's parental rights. She is a law unto herself. She is also oblivious to her lack of objectivity in matters of access."

Inevitably the judge had to look at the conduct of the parties. In a situation all too familiar to family courts around the world, this couple caused the police to get involved on 14 occasions within 18 months, described as a shocking abuse of the Niagara Regional Police Service.

The judge described how Larry would regularly drive past the residence of Sam and Catherine and "shoot the finger" at Sam and yell "Jackass, loser". In relation to the first, the judge commented: "a finger is worth 1000 words and therefore is particularly useful should one have a vocabulary of less than 1000 words." In relation to the second: "when the operator of a motor vehicle yells "Jackass" at a pedestrian, the jackassness of the former has been proven but at that point it is only an allegation as against the latter".

Part of the difficulty for any judge dealing with a very heavily contentious case and litigants in person is that there still has to be analysis of issues of law and adjudication on disputed facts. Amidst the mayhem of this dysfunctional family and the inadequate presentation in court of their respective cases, this judge had to work through what, on any basis, were complicated issues of law regarding setting aside separation agreements, parental alienation, spousal maintenance claims in the context of appalling conduct and similar. Many pages of the judgment are devoted to careful analysis of the relevant law, undoubtedly lost on the parties themselves.

At one stage he had to consider whether to refer the matter into counselling. He concluded: "No practical purpose would be served if the court were to decree a schedule of counselling for the parties and the children. The hate and psychological damage that now prevail would require years of comprehensive counselling to undo. The legal system does not have the resources to monitor a schedule of counselling (nor should it do so). The function of Family Court is not to change people, but to dispose of their disputes at a given point in time. I preside over a court, not a church."

Having found clear parental alienation by the mother of the daughter against the father, he turned to what might be regarded as more concrete issues ie money. As he put it: "I come now to the issue of spousal support, historically the roulette of family law (blindfolds, darts and Ouija boards being optional)." 

He added: "While Larry's access-conduct has largely reflected nothing more than inept parenting, Catherine's parental-alienation behaviour has been evil. Is there a remedy? Dollars cannot replace the father-daughter relationship that Catherine has destroyed. However, in the circumstances of this case, justice has only a Hobson's choice. Catherine's alienation of Larry [and his daughter] must be condemned and, an effective method of expressing that condemnation, is by way of a reduction in spousal support."  He concluded that in view of the conduct of the mother in respect of the daughter and alienation towards the father, the spousal maintenance to which she would be entitled would be reduced to 1 dollar a month, the English equivalent of the peppercorn.

The judge concluded by drawing attention to the long-suffering and excellent work conducted by the children's lawyer. The judge said: I'm indebted to him for his effective questioning of the witnesses and wise and helpful submissions. I suspect this was a trying experience for him. Throughout his year-long involvement in the case, he was contacted on numerous occasions by the parties and by the children. He conducted himself in a fair-minded manner, impartial to the parties, always alert to the best interests of the children and in the highest traditions of the Office of the Children's Lawyer." At a time across the world where it seems family lawyers can do no good and governments adopt the concept of delawyering, keeping lawyers out of disputes, such high praise under undoubtedly difficult circumstances needs to be fully recorded.

There is much more set in the case which warrants reading. It can be found by clicking here.

Despite the best endeavours of statutory reforms across the world to produce openness and transparency in the family courts, many members of the public, politicians, the media and others are simply unaware of the intensity of the disputes which arise and the conduct by some couples on relationship breakdown. Of course this was an extreme case but not a rarity. Whilst there is quite correctly support for pre-issue mediation and other dispute resolution out of court, there should be no disguising the very real emotional and physical animosity and bitterness expressed between parents/spouses including the great harm to their children. This judge is to be congratulated on opening the lid to the difficulties of dealing with these cases within the court system and yet the importance of wisdom and candidness in their adjudication.

But expressing it in these terms on the second day after a judicial appointment might not be wise!

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.