Just 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