Eighteen Month Delay in Custody Decision Illustrates Glaring Problem

GEO_edited-1Just yesterday I was speaking to a group of lawyers about family law arbitration. One of the points I made was that arbitration has several advantages over court proceedings because private family law arbitrators, be they retired judges or senior family law lawyers, can be available on short notice, and most will guarantee their written reasons or “award” within 30 days after the arbitration hearing completes.

What better illustration of my recent complaints about the length of time it takes to receive written Reasons from our trial courts then the case of Madden v. Dahl 2013 BCCA 373.

Mr. Madden and Ms. Dahl lived with their two children, ages 5 and 3, in northern British Columbia. Their relationship broke down and Ms. Dahl, without notice to her partner, moved herself and the children to her parent’s home in the Okanagan, a 14-hour drive from the family home.

Mr. Madden commenced a court application for custody of the two children and the parties had a six-day trial in the Provincial Court-Family Division in March of 2011. Three months prior to the trial the parties had agreed on a two-week on/two-week off parenting schedule, which seemed to work as the children were not yet school-age.

Five months passed without a decision from the court so Mr. Madden, in contemplation of his 5-year old starting kindergarten, brought an application to the trial judge for an order of primary residence. The judge refused to hear him.

Mr. Madden took his 5-year-old to kindergarten during his two-week parenting time and during the two weeks she was with her mother she was “home schooled”.

Another year passed and still no decision from the trial judge, so the parties’ lawyers wrote a letter to the court asking for an “expedited” decision, as grade one was now beckoning. This is where I began to snicker and ponder whether counsel actually suggested that the long-awaited decision could be rationally characterized as “expedited”, albeit the situation for these parents and children in the face of apparent judicial apathy, is no laughing matter.

On September 4, 2012 the trial judge ordered that the children spend the school year with their father in year one and in year two, spend it with their mother, sharing school vacations equally, and exchanging the children on additional days, a result that would see the children miss about thirty days of school each year. The judge’s decision was bare-bones as the Reasons supporting the decision were not released until three months later.

It apparently did not occur to the judge to inquire as to the intervening circumstances, or to request updated information from the parties with respect to their children, so the court was not aware that the concept of two homes, 14 hours apart, was having disastrous effects on them.

Mr. Madden wisely appealed the trial judge’s decision to the British Columbia Supreme Court and not surprisingly, found a judge who agreed the order could not stand. The appeal judge ordered that the children reside primarily with their father in the former family home, finding that his circumstances provided the best situation for the children.

Ms. Dahl appealed the order of the Supreme Court judge to the British Columbia Court of Appeal where three additional judges also agreed that the children’s best interests favoured the father’s residence as their primary home.

It is shocking to think that a family would have to wait 18-months to get a judgment from a Provincial Court on a custody matter. It is even worse to see the apparent lack of concern about the delay, resulting in a decision that was flagrantly flawed and led to two appeals.

And one wonders why the public are disenchanted with the family justice system?

Lawdiva aka Georgialee Lang

2 thoughts on “Eighteen Month Delay in Custody Decision Illustrates Glaring Problem

  1. Cases such as these can certainly languish in the Court system for years, in my case it was four years. There were repeated adjournments, different judges at each hearing, and as a result shenanigans on the parts of the defendants and counsel, including an Amicus Curiae who just appeared out of nowhere to throw a spanner into the proceeding, and then vanished without another word. The family law system is indeed broken, but the worst part of it is the lawyers.

  2. I have been going through a divorce for eighteen months now, I have four children 3 from a previous marriage and 1 from the man I am currently going through the divorce with. So far I have been forced to move out of my home with the children as he was threatening to screw windows closed. I made a decision to move to the Salmon Arm with the children. He then managed to have me forced to return the youngest who is just 5 to the Kootenanys where I have been waiting for a custody case to be heard since September. I have not received so much as a fork out of the marital home. My son is not only separated from me and his older siblings but I also have no contact with him unless he is at daycare as my ex has cut off communication. The only way I have been able to get any time with my son since September is if I go through a Lawyer. I now have eleven thousand dollars in debt and less to show than when I moved out with nothing but my children. My name is the mortgage of a home that has no insurance on it, that he has not paid back taxes on and he does not pay his bills oh yes and he has our son. I do not know what to do!

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