Judge Comments that Family Litigants are “Blowing Their Brains Out Fighting”

BarristerIn yet another British Columbia Supreme Court case, a wise judge points out the folly of the battle between litigating spouses and the accompanying expense, both financially and emotionally.

In Danroth v. Whiting 2017 BCSC 1814 Mr. Justice G.C. Weatherill considered an application to defer the sale of the parties’ family home. The wife had previously obtained an order for the sale of the home with the condition that the husband, who now lived in the home, had a one month reprieve before it would be listed for sale, in order to allow him time to raise the funds required to purchase his wife’s interest.

The 71-year-old husband wished to remain in the home he had lived in for years but had not been able to borrow sufficient funds to buy his wife’s interest. The home was valued at $3.5 million and had a mortgage of $1.2 million, leaving equity of $2.3 million. He needed to pay his wife $1.15 million, but he was only able to borrow $2.2 million, which was insufficient to pay out the mortgage and pay his wife. He was also waiting for an appeal hearing as he had previously appealed the order that the house be sold.

Meanwhile, it appeared the family squabble was to become more complicated as at least one of the parties’ children was contemplating filing a lien, called a caveat, against the title of the property prior to the property’s listing for sale, alleging that he/she had an interest in the property as well.

The judge noted that “this court sees a steady diet of these kinds of family disputes where it is all about money. The parties tend to lose track or lose sight of what really matters. However, that is for another day.”

Ultimately, the court refused to defer the sale, but before finalizing his judgment he spoke frankly to the parties’ counsel:

“……this is a tragic situation…the inevitable result will undoubtedly be that they will regret, if they don’t already, not having taken a step back and considering whether there is another, less tragic, way of resolving their dispute…this family is destined for complete ruin if they carry on as they are…this is all about money and the parties are spending it in droves….It seems to me that the parties could put their money to better use, for their retirement or for their future. The claimant is 71 years. How much more of this does he want to devote to this fight?”

Kudos to Justice Weatherill for taking the liberty that his status affords him, to try to de-escalate the family battle before it is too late. Judges hold tremendous sway over litigants that appear before them and it is heartening to see judges earnestly warn litigants of the fate that befalls them if they continue on the path they are on.

His parting words:”These comments can be taken for what they are worth. This court sees these situations far too often. I wish the parties the best of luck.”

A point of interest: Judge Weatherill is one of two judges sitting on the Supreme Court of British Columbia with the same name. The other justice is his twin brother, and yes, they are hard to tell apart.

Lawdiva aka Georgialee Lang

6 thoughts on “Judge Comments that Family Litigants are “Blowing Their Brains Out Fighting”

  1. Master Muir just made similar remarks in 2017 BCSC 1704 and in my view as counsel we need to do a better job of managing our clients and their expectations. There has to be a better way. A portion of Master Muir’s decision is reproduced below:

    [2] This application, which would normally be a relatively straight forward matter, required more than a day-and-a-half of court time over three separate hearings. That there is an unhealthy and abusive climate to this litigation is highlighted by the fact that the parties presented more than two boxes of materials containing perhaps 160 affidavits and that there have been 26 affidavits filed by the respondent and 15 by the claimant.

    [3] I appreciate that not all of this material was directed to the issues before me on this application, but that is an extraordinary amount of material in a matter that is less than a year old. This approach to family issues is counter to the fundamental basis of our present family system which encourages negotiation, not litigation. This is not supposed to be a war. It is supposed to be a civilized allocation of rights, responsibilities, and assets following a family break-up. This type of litigation is unnecessary, it is damaging to the parties and to the children, and it wastes family assets on litigation costs. I ask that counsel convey those sentiments to their clients in the hope that this can be reined in and the parties can refocus on resolving this in some other way.

    . . .

    [11] On an interim application of this nature, the court cannot finely parse such conflicting evidence. That is something that is properly the domain of the trial judge who has the opportunity to listen to the evidence and, in particular, has the benefit of cross-examination. The time and effort spent on amassing the evidence, presenting allegations, and defending against them was a terrible waste on both sides.

    1. Nikki Thanks so much for your comment. Yes, I love Master Muir’s Reasons and wrote an article on Oliverio v. Oliverio 2017 BCSC 1704 titled “Extreme Litigation Decried by the Court’ published on September 27, 2010 on my blog and also on Canliiconnects.org. I am heartened by our jurists willingness to tell it like it is!

  2. I agree .., but with one caveat. The Courts need to stop merely ‘talking’ about the problem and start ‘doing’ something about the problem. By not requiring a greater degree of efficiency, the courts bring much of this this upon themselves. The courts are enablers.

    By way of very recent example, I am involved with a simple, straight forward BCCA chambers application. I am merely seeking a short time extension of a filing date (to allow for the obtention of transcripts)…as far as applications go, it doesn’t get much simpler. The opposing party filed no response materials for the hearing. Rather, at the hearing, the opposing party tasked the judge to go back to the registry file and read earlier materials. The judge kindly agreed. The matter is now on reserve. Yes, you heard that right, a simple ‘extension order’ sits on rerserve.

    It’s bad enough that a simple, incontrovertible 10-minute hearing got dragged out to almost an hour while the other party argued from inaccurate memory, but to delay such a simple decision, just so the judge can go back and read the materials that should most properly have been put to the judge in the first place is not efficient. Sometimes Judge’s need to just keep the simple decisions, simple.

    Insofar as the examples used in the story, perhaps applications would be more ‘surgical’ and less ‘shotgun’ if the courts kept the parties on track and we’re less inclined to reserve on simple motions. Just a thought….

    1. I agree with you entirely. Judges need to take control of their courtrooms to a far greater extent than most of them do. A simple extension application with no responsive material should not be reserved. It is a waste of court time, judge time and the litigant’s time, a factor which is rarely considered.

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