High-conflict parenting cases are some of the most challenging cases for the courts. Two parents — both of whom profess to love and care for the children above all else — become unable to work out disagreements that range from the challenging (with whom will the children reside) to the mundane (how long should the children’s hair be)? Unlike civil cases, in which upon the conclusion of the case the two sides can go their separate ways, in parenting cases the litigants must still interact with one another on a near-daily basis, as they struggle to raise their children.
In cases like these, judges may decide to “seize” themselves of the file, meaning that all further court appearances will take place before that same judge. That judge will come to know the parties and their children, and will be better able to wrangle these difficult litigants and address the unique facts of their cases. As one court said: “The reasons for doing so for all cases are obvious. The judge will be familiar with the case so the litigants do not have to explain the situation over and over again. It avoids “judge shopping” to try to get a better result. It prevents inconsistent approaches. It saves legal and other costs.”: A.A. v. S.N.A., 2009 BCSC 387.
At the same time, judges who deal with difficult parties for long stretches of time may find their objectivity eroded. Who can blame them, when they are faced with the Sisyphean task of trying to get entrenched adversaries to get along and cooperate respecting their children? When this occurs, the results can be hard to repair.
That was the case in S.R. v. A.B., 2021 BCCA 28, a classic high-conflict parenting case. The parties had two children, now ages 19 and 11. After a five-day trial in 2013, the parties shared custody, with the mother having the weekdays and the father the weekends. The older child, then approximately 15, refused to follow this schedule, running away from his mother’s home in favour of his father’s. Five months after trial, the trial judge adjusted the schedule such that the older child would live with the father but would spend alternate weekends with the mother.
Alas, the conflict continued. By December 2018, the parties had been to court 44 times. Although they were self-represented, one can only imagine the time and resources poured into the litigation that could have instead been used to benefit the family.
In 2017, they came in front of a particular judge in chambers on the mother’s application for compensatory parenting time and enforcement of past orders. That judge, after listening to the parties for approximately 40 minutes, did something neither party had asked of him: he made an order that each party would have full-time custody of one of the two children until February 2018, describing this as a “timeout”. The judge also seized himself of any further applications.
This kind of custodial arrangement,with e ach parent having one child, as opposed to sharing custody, is highly unusual. Described as “split custody”, it both limits each of the children’s relationship with one parent and also can damage the relationship between siblings.
The seized judge heard another application from the mother in March of 2018. The father had sent a medical letter to the registry requesting an adjournment because he had been diagnosed with pneumonia. The seized judge proceeded anyway, without the father’s presence, and on his own motion extended the split custody order indefinitely.
In the summer of 2019 the parties came back in front of the seized judge. The father was seeking unsupervised time with his son. The seized judge dismissed the application, essentially concluding that the father was bound by the 2017 order granting split custody and could not show a significant change since that time.
The Court of Appeal reversed, finding that the October 2017 order for split custody had been wrongly made, and that, as a result, the subsequent orders extending it and then refusing to vary it had also been wrongly made.
In 2017, neither party had requested the “time out”. It was made against both the parties’ requests and contrary to certain agreements they had made between them. Furthermore, the judge had not made any finding of a material change in circumstances since the 2013 order after trial. Then in 2018 the judge extended the order again on his own motion and this time without the participation of the father, whose medical issues were not in dispute. This compounded the unfairness to both of the parties. The Court of Appeal reversed the seized judge’s 2019 dismissal of the father’s application for parenting time with his son.
The Court of Appeal also considered its jurisdiction to interfere with a judge’s decision to seize themselves of a case. The Court noted the several advantages of seized judges in high-conflict parenting cases (familiarity with facts, avoidance of judge shopping, avoidance of inconsistent decisions and approaches, and economic and other efficiencies). But it also noted that a judge seizing themselves can lead to a lack of objectivity.
Nevertheless, the decision of a judge to seize themselves was not a decision capable of appellate review, being more in the nature of a procedural direction or instruction. Rather, if a litigant is concerned by a trial judge’s decision to seize themselves, the appropriate remedy is to address a complaint to the judge themself, or to the chief justice of the Supreme Court . Further, if the judge’s conduct rises to the level of an appearance of bias, that judge may be disqualified.
The outcome in S.R. is highly regrettable. The parties have two children, each of whom does not see one of their two parents. Presumably this custodial arrangement also limits the time the two brothers spend together. The Court of Appeal—though refusing to reverse the judge’s decision to seize himself—“respectfully suggest[ed]” that the file be passed on to fresh eyes.
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