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JONESIE: When lawyers attack!

January 02, 2019 - 1:30 PM

 


OPINION


Their marriage lasted 12 years and so far they’ve been in court for nine years ending it.

As you might expect, there’s plenty of animosity between the couple, a cop and a nurse who married in Kelowna in 2000, so they certainly didn’t need their lawyers making the contest personal as well.

If you thought divorces are needlessly expensive and lawyers made it unnecessarily complicated and messy, this case might set the bar. It might also be a warning to future couples in divorce court that they’re doing it wrong. These folks spent several hundreds of thousand of dollars in legal and other expenses, together filed 79 affidavits, spent weeks in court, went to the B.C. Court of Appeal twice and nearly went to the Supreme Court of Canada — all despite repeated admonishments by judges for “excessive litigation” and “hyper-aggressive tactics.”

Lawyers for both parties took a swift kick in the britches with a new decision last week — one that had nothing at all to do with separating assets or child custody or care.

The cop was arguing for an almost unheard-of application to have a judge remove his ex-wife’s lawyer from the case for malicious prosecution. He was understandably upset because that lawyer supplied false information to a judge who found him in contempt of court.

The long, ridiculous history of the case is laid out masterfully by justice Len Marchand who called the actions of both parties “reprehensible". Let me pause here to point out that Marchand is a terrific writer and if you are interested in law generally or divorce or even just an interesting read, you could do much worse than his analysis of a case that required him to parse through hundreds of page of court records, affidavits, arguments and case law.

Judges often don’t get the credit they deserve.

Lawyers, however, are often deserving of more criticism than they get — but not this time.

Under his microscope was lawyer Muriel Matthews of Cranbrook. He didn’t remove her from the case, but said she “became an active participant in the ongoing and counter-productive hostilities between the parties”, said she “has tried to defend the indefensible” in her errors in the contempt case (she already paid a hefty cash price in the appeal on that matter). Of course he also pointed out the application and hearing he was ruling on were part of the same abusive and assaultive actions by lawyers for both parties. He called it “out of all proportion to the issues at hand.”

That a routine hearing resulted in the five-day application to remove Matthews “delayed both parties from obtaining an adjudication of real issues and further depleted their financial resources which is most unfortunate, especially for (their two children).”

“In spite of clear warnings not to do so, they have continued their hostilities at an excessive and unjustifiably heightened level."

Of course, lawyers are part of an adversarial system. They are expected to fight for their clients but Marchand lays out for anyone engaging a lawyer in family matters on what they should expect.

"The practice of family law is tough. Clients are often emotionally vulnerable and financially struggling. There may be issues of violence, bullying and control. The stakes, particularly when children are involved, are high. Feelings of anger, bitterness and resentment may impair a client’s ability to give rational instructions. If not handled appropriately, high conflict cases can drain a family’s already depleted financial resources, jeopardize the welfare of children and occupy an inordinate amount of scarce judicial resources,” he wrote. " Counsel must be empathetic while giving frank, accurate and objective advice. Counsel must help their clients find an appropriate and cost-effective path to resolution.”

They should never get drawn into the conflict. That’s mostly the point, here — how you can avoid an overly-expensive divorce. Theirs is like a handbook of signs that your lawyer is too emotionally involved.

But perhaps most remarkable about the case is what Marchand did next — he went off the board, got creative and muscled in a path to resolution even though he wasn’t asked to do it. Judges just don’t often do that. They confine themselves to thinking tightly about issues, taking direction from the law. They reason out answers to complex questions, not create solutions. Certainly none of the nearly dozen other judges who heard arguments in the history of this case thought to.

He called for all future matters to be handled by a single judge who is aware of the history and ensure that future litigation is on point and not an abuse of court powers and process.

So after nine years of judges hearing their useless squabbling, he didn’t send anyone to the corner for a time-out — he called in a permanent babysitter to keep them in line.

— Marshall Jones is the editor of iNFOnews.ca

News from © InfoTel News Ltd, 2019
InfoTel News Ltd

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