Ian Mulgrew: Judge fails to provide reasons for decision, 10-year custody battle back to Square

Ian Mulgrew: Judge fails to provide reasons for decision, 10-year custody battle back to Square 1

Opinion: “The issues in this case are not complex … Providing responsive reasons for judgment ought not to have been difficult.”

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A B.C. couple going through a thorny custody dispute for the past decade are now facing a new family law trial because the judge failed to provide reasons for his 2018 decision.

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Forget about the squabbling parents, think of the emotional damage to the now-adolescent boy who was a toddler when provincial court proceedings began in 2009.

In the case anonymized with initials as O.R. v M.G. to protect the child, M, B.C. Supreme Court Justice Frits Verhoeven said with “great reluctance” he could find no other solution.

“With respect, the trial judge did not provide sufficient reasons for judgment, and the record itself does not allow for meaningful appellate review of the decision,” Verhoeven wrote. “The reasons contain no statement of issues, no reference to legal principles applicable, no review of the evidence and no express reference to factual findings.”

Verhoeven set aside the Sept. 7, 2018, ruling by provincial court Judge Daniel Steinberg, appointed to the bench in 1994.

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The father is at wit’s end. After spending years and hundreds of hours in-and-out of court to win greater access to his 12-year-old son, he must go back again.

“After going through the appeal process, including two appearances in the appeals court, and three times in the Supreme Court, it seemed these judges did not keep the best interest of the child in mind,” he complained. “My jaw dropped when I read this.”

It’s one thing the parents appear to agree on — the courts aren’t acting in the best interests of their son.

The couple began a relationship in 2007 and M was born in April 2008, a first child for both. They were never married, never lived together and proceedings in provincial court started the following year.

The parties initially agreed to a parenting schedule and continued to be joint guardians while trying to resolve their differences about rearing the baby.

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In 2016, the custodial tug of war intensified and accusations flew about the child’s emotional well-being and parental bullying.

Steinberg began hearing the case on Nov. 29, 2017, but what was to be a three-day trial turned into a fortnight distributed over the following year, at the end of which he seemingly gave the father more time with his son.

“Well, here is what I am thinking,” Steinberg told the parents, according to the court transcript. “It is not going to be 50-50.”

But it was more a colloquy than a ruling.

What followed was described by the B.C. Court of Appeal — “the various orders emerged from an extensive running conversation, indeed at times almost a negotiation, between the judge and the parties. The judge’s evident purpose was to convey the thrust of his order, and to ensure both that the parties understood it and it was practical. The judge accepted rolling submissions from the parties about the scope of the order and its terms before the terms were finally pronounced.”

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“You have two different parenting styles in some ways,” Steinberg said. “They’re both OK. I don’t know if you want me to give long reasons for judgment, reviewing all of the evidence.”

The mother said, “Yes.”

“OK, whatever you want to do, your honour, is fine with me,” replied the father.

The mother was unhappy with Steinberg’s decision to give the dad more time and appealed on Oct. 16, 2018, arguing the judge displayed a bias, failed to provide sufficient reasons and didn’t consider the best interests of the child.

The father wanted the appeal dismissed or the court to give him even more time with his son.

Both parties continued to be self-represented, both filed materials late, which resulted in the need for a further adjournment, and Verhoeven finally heard the appeal Jan. 12 and 13.

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He quickly concluded his hands were tied.

“There are no formal reasons for judgment,” Verhoeven emphasized.

The inadequate reasons didn’t enable him to make his own findings of fact and reach conclusions in law. Since they were both inadequate and inscrutable, Verhoeven said a new trial was required.

“Without any meaningful reasons, together with consideration of the record, I have no way to assess the merits of the mother’s allegations of error or the father’s alternative orders sought,” he explained.

“The issues in this case are not complex. The trial judge displayed a great deal of patience for the parties and concern for the well-being of the child during the course of the trial. Providing responsive reasons for judgment ought not to have been difficult … The prolongation of litigation and conflict between his parents is likely to be harmful to the child.”

No kidding.

“Given the unhappy procedural history of these matters, and the lengthy delay encountered, I urge the provincial court to make such interim orders as may be appropriate, if any, and to expedite the hearing of the new trial,” Verhoeven said.

The father all but howled that it’s “a broken, one-sided court system.”

“These judges are stealing time that we will never have again or ever get back at his age! This is not only unjust but it goes against my son’s rights as a child and my rights as a father! How could this judge simply wipe everything clean for the last 10 years simply because the trial judge made a mistake?”


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