Jul 19, 2016

High Conflict and the Judicial Seizure of Cases

R.R. v. S.L., 2016 BCSC 1241 (CanLII)

R.R. v S.L. is a high conflict British Columbia family law case involving the usual assortment of ex parte restraining orders, allegations of alienation and impugned consent orders that typically bespatter such files. The most recent of the case’s many interim applications asked the judge who had seized himself of the case, Justice Bruce Butler, to recuse himself from the file on the ground of bias. The resulting reasons for judgment are worthwhile reading for their summary of some of the more prominent cases on bias and for the court’s remarks on the benefits of the judicial seizure of such cases.

Before I provide Justice Butler’s comments on seizure, however, I want to say a few words about the foundation of the bias allegation.

The recusal application was brought following another decision, made just two months earlier, on the children’s parenting arrangements and the family’s participation in a therapeutic program. The court summarized the applicant’s primary position on recusal as follows:

[10] The [applicant] relies on an extensive list of findings, statements or conclusions which are set out in the [previous decision]. She referred specifically to paragraphs 21, 28, 29, 34, 36, 40, 41, 42, 44, 45, 70, 75, 76, 78, 85, 89, 91, 93, 102, 115, 117, 120 and 121 of the [previous decision]. She says that in those paragraphs many of my observations, findings of fact, and legal conclusions are wrong. In particular, she says I improperly or incorrectly rejected the evidence presented by the [applicant]. Instead, I accepted the written reports to the Court filed by [the therapist], heard her oral report to the Court, and accepted her recommendations. She says that a reasonable and impartial person looking at the [previous decision] would conclude that I could not fairly adjudicate further applications in the proceedings and would not have a “totally fresh and open mind, having already made orders based on [the therapist’s] recommendations and statements…”.

Although I’m sure there’s much more to it, this position seems to be based on the idea that a judge who rules against a party in one application can’t fairly determine any subsequent applications involving that party. (It also seems to suggest that a party who declines to appeal a decision may nonetheless attempt to impeach that decision by alleging bias.) As Justice Butler observed,

[15] The assumption underlying the … application is that the rulings I made in the [previous decision] are wrong. If they were not wrong, then it is difficult for the Mother to suggest that there could be an apprehension of bias. …

The court then cited the decision of Justice Victoria Gray in S.M.M. v J.P.H., 2015 BCSC 1042, for this proposition:

[7] In his oral submissions, the Father argued that my decisions were “universally in favour” of the Mother.

[8] The Father is incorrect to say that my decisions have “universally” favoured the Mother. Of course, to use a sports analogy, the fact that an umpire calls three strikes does not establish that the umpire is biased, because the pitcher may have thrown three strikes. Similarly, if a judge repeatedly finds in favour of one litigant, it does not establish bias.

An excellent analogy. Losing an application may not mean that the presiding judge was biased, it may just mean that your application sucked to begin with.

Turning to the judicial seizure of high conflict family law cases, Justice Butler took the opportunity occasioned by the recusal application to comment on “the benefit which accrues to the administration of justice and the litigants when judges are seized of high conflict family proceedings” (emphasis added):

[24] The situation faced by a judge in a high conflict family case is somewhat unique. It is not comparable to the rehearing of a dangerous offender application or bail application in a criminal proceeding. Judges are encouraged to seize themselves in high conflict cases for four related reasons:

a) High conflict cases tend to involve serial applications. If no judge is seized of the proceedings, the parties have a tendency to bring new applications seeking reconsideration of the same or similar issues. In other words, parties attempt to re-litigate matters before a new judge who does not have familiarity with a case and may arrive at a different decision on that previously considered matter.

b) High conflict cases benefit from consistent rulings. When the parties have litigated an issue and received a ruling, they know the judge’s views on that area of conflict. This tends to reduce the number of applications and allows the parties to understand what the likely ruling may be on many issues. The uncertainty that arises from inconsistent rulings which can cause both emotional and financial cost should be reduced.

c) There is a substantial savings in court time if the parties do not have to re-argue the family and procedural history on every application.

d) When a judge is seized of a matter, the decisions are more likely to be sensitive to the facts and circumstances of the family. This is because the judge is likely to have more knowledge of those facts and circumstances that he or she can apply from one application to the next.

[25] These benefits would be lost to parties if courts are too ready to accede to an application for recusal. A judge should be reluctant to recuse him or herself in circumstances that do not call for disqualification. …

I agree that judges should be encouraged to seize themselves of pre- and post-trial applications in high conflict family law cases, although I recognize the extreme inconvenience that seizure can sometimes cause and that not every case is appropriate for seizure. Judges who courageously seize themselves of these cases generally provide a great service to the parties and, more importantly, to the parties’ children. Although a judge’s decision to seize him- or herself of a case is individual and highly discretionary, the reasoning expressed in the decision of Justice Butler will hopefully have some persuasive effect.