The traditional trial culture of BC family law has shifted to react to the demands of an overwhelmed system that is under-resourced and buried under a never-ending volume of cases awaiting attention. BC family law judges have become impatient with the glacial speed and are increasingly proactive, casting themselves in the role as a seeker of all the evidence that he or she believes is needed in order to make fully informed decisions.

BC Family Law Rules encourage just, speedy, and inexpensive resolution

Over the years the role of a judge in BC family law conflict has shifted from a passive receiver of evidence to a much more proactive role. The traditional and historic style of trials, with passive judges, allowing counsel unfettered control of how much time and resources BC family law matters will consume, is gradually changing. Case management and trial judges are being encouraged by the Family Law Rules to take charge of the process in order to conserve resources and to “triage” complex cases of high conflict. The BC Family Law Rules require judges to actively manage the legal process in line with the principle of proportionality. The goal is to secure the just, speedy and inexpensive determination of every BC family law case on its merits.

Extreme example of “activist” judge in family law context

The paradigm shift in judicial role is not limited to BC family law matters. Courts across Canada – including the Supreme Court of Canada Hryniuk v. Mauldin2014 SCC 7 – have recognized that prompt judicial resolution of legal disputes allows individuals to get on with their lives. Access to justice requires a necessary culture shift.

Van Wieren v. Bush, 2015 ONSC 4104, a recent Ontario family law matter, provides an extreme example of a judge taking on a pro-activist “inquisitor” role. In March 2012, both the mother and the father brought applications seeking custody of their child, born October 3, 2010. Following an eight-day trial marked by a huge number of questions and involvement by the trial judge, custody was awarded to the mother. The order specified that the father was to have access and that he was responsible for all the access transportation. The father appealed, asking that the trial judge’s order be set aside and an order be granted reinstating custody of the child to him, with access to the mother. The father’s appeal was dismissed. The appeal court determined that despite an “over-abundance of participation” by the trial judge, there was ample evidence upon which she could and did make her decision and her reasons for judgment address each and every issue raised.

Interventionism and reasonable apprehension of bias

The main ground of the father’s appeal was that trial judge conducted the trial in such a manner as to give rise to a reasonable apprehension of bias against him. Over the course of the eight-day trial, the trial judge spoke over 3,500 times. The cumulative effect of the trial judge’s interventions left the father with the impression that the judge placed her authority on the mother’ side – in other words, that the trial judge was “ganging up” or “double teaming” the father.

On appeal, the court read the entire transcript of the trial and noted not only the number of involvements and interruptions but also the nature of and motivation for those interruptions. When viewed within the context of the entire trial and the trial judge’s very active involvement in her quest for all of the evidence she needed, the appeal court was not satisfied that a “reasonable person” would have shared the father’s impression of bias or conclude that the trial judge was predisposed to decide the issues before her in favour of the mother. The mere volume of interruptions and interventions does not in and of itself establish a reasonable apprehension of bias. The test of bias is whether an objective “informed person viewing the matter realistically and practically” would find the trial judge’s conduct biased.

To give counsel and the parties context to understand the extent and balance of the trial judge’s involvement in the trial hearing, the appeal court went to the length of preparing a detailed chart listing the frequency and totals of all comments, questions, directions, findings, interruptions and interchanges with counsel and the witnesses by the trial judge. The argument that the trial judge interrupted or interfered with the father and his witnesses and not with those of the mother and her witnesses was entirely refuted by the chart: it showed that the court spoke 1,992 times during the father’s case and 1,147 times during the mother’s case. This indicated to the appeal court that that the trial judge treated both litigants and their witnesses similarly.

Pro-activist “inquisitor” role of gatekeeper and controller of evidence

The trial judge in Van Wieren v. Bush was well and truly ensconced in the pro-activist “inquisitor” role of gatekeeper and controller of evidence tendered, sought, and allowed (emphasis added):

[33]      The trial judge interrupted and frequently took over from counsel.  For the most part, the transcript established that the judge sought clarification of ambiguous answers or oblique obfuscations.  The manner in which the [father] offered some of his evidence clearly demanded and invited a closer examination by the trier-of-fact. (e.g. his “draining” of the joint bank account and his distress as how to the [mother] was spending small amounts of money for groceries and diapers).  She took great pains to decipher his “position” why he did not pay any child support and to plumb the depths of his complete lack of awareness of the cost of necessaries for an infant.  The judge was entitled to get a clear understanding of his motivations and intentions regarding his daughter, especially when he evaded giving direct or clear answers.

[34]      As a result of the trial judge’s persistent questioning of the [father] and his mother, a picture formed of an irresponsible, petulant “father” (e.g. his regular conflicts with his parents and his leaving the house to “cool down”; his dating a “female” for 10 months while continuing to sleep in the same bed as and have sex with the [mother]; his reporting the [mother] to the police as “missing” just because he couldn’t get her by phone at her uncle’s; his unwillingness to accept the C.A.S. letter regarding B.B.’s not posing any threat to Sienna; his unwillingness to “facilitate” reasonable access to the child by the [mother] are but a few of many examples of why, as his and his mother’s evidence unfolded, the trial judge, by her extensive questioning, tried to understand the reason or motivation for actions taken by the Van Wieren’s that could justify an order in their favour.

The appeal court noted that the trial judge was at times blunt, direct, persistent, plain-spoken and on a few occasions, unduly abrupt.  However, the trial judge was not biased or pre-disposed to her ultimate decision, just because, with counsel’s help, she ferreted out the evidence that she knew that she needed to make an informed decision in the best interests of the child.

BC family law: Take home point on changing judicial role

Speedy resolution of family law matters is necessary to allow individuals to get on with their lives. There has been a significant shift in the role of judges in BC family law matters to react to the demands of an overwhelmed system that is under-resourced and buried under a never-ending volume of cases awaiting attention. Parties involved in a BC family law dispute will increasingly see activist judges inserting themselves into every aspect of a trial and taking a pro-activist “inquisitor” role.