Ask the Hammer

When the dictum from on high is how fast files get through the system rather than placing the importance on actual justice and the rights of the parties we can say “SOMETHIN’S BROKE”!

As a lawyer I find this new optic to be both frustrating and shameful. When delays are computed from the date on a Notice rather than on the actual date of reception or knowledge, we open ourselves up to miscarriages of justice. But this is how the delays to Appeal are now being handled.

When the service of a proceeding to a defendant, who is not a resident of Quebec and not represented by attorney, is accomplished by leaving the document in an “appropriate place”, the question begs, “What is appropriate and who decides the appropriateness”?

And when the new, yet not improved, schedule for a file, now called “protocol d’instance/Case Protocol”, concluded between attorneys, must be notified to your own client unless the client has signed it, you know this is being done so parties may be penalized because it is binding and you are required to comply with this under pain of sanctions (a term more familiar in other Provinces and in TV legal dramas). And it can’t be modified without Court approval, meaning paying your lawyers to go to Court [again] instead of previously when they could simply agree to modifications amongst themselves and this is what is called Access to Justice!

All these new “rules” and 35 years in Family Law has shown me that no one is immune from the adverse effects of separation and divorce.

Depression In Family Cases Can Effect All Concerned.

What you may not realize is that symptoms of and full blown depression can spill over to their family members (think of the children, the grandparents) of the dissolving couple. But what most of you may not also realize is that the stress, pressure to get things done fast, (i.e. fallout and depression with all of its subcomponents), can effect the very people you engage to help you through what can be a very devastating life event for one or both of the parties to a proceeding.

I speak of the professionals you seek out to guide you through the quagmire to the new segment of your life that starts once the procedures end. Procedure being an apt term as it conjures up what many of us think of as a medical term. You go to the hospital for a procedure [necessary or elective] and your divorce file is full of procedures inside the main proceeding that started the ball rolling.

And quagmires they are as they can suck not only you, but everyone associated with you and your case, down and down until there seems to be no way to extract yourself, and those with you, from the suffocating hold that I see all too often when I enter the Courthouse.

This situation has now become even more aggravated with the new Civil Code that came into effect on January 1, 2016. A recent radio interview on September 27th, 2016, between Paul Arcand [98.5FM] and the Chief Justice of the Superior Court, Jacques R. Fournier, clearly outlines what the new priority has become for all cases inside the walls of this “house” known as Court. To quote verbatim the Chief Justice (albeit a translation from the French):

“The Court must stop being taken hostage by all sorts of things that have nothing to do with the essentials [of the case]. One must no longer do law just for the beauty of law. One must do law to advance the case of the client”.

Well that may be all well and good, but when substance has to take a back seat to expediency, the price paid is not only the integrity of the judicial system but the rights of every client to a full and complete hearing.

When fixing a trial date is the end goal instead of ensuring that a party has the necessary tools to plead the case; when forcing a side to proceed without having the ability to obtain competent legal representation or the elements of proof needed to counter allegations by the other side; without having the necessary funding commensurate with the resources of the opposite party, the system is prioritizing speed rather than: “audi alteram partem”/to listen to the other side;

“which is the principle that no person should be judged without a fair hearing  in which each party is given the opportunity to respond to the evidence against them”.

Speed is not justice. The fact that the Government does not appoint sufficient numbers of Judges to hear the volumes of cases before the Court should not become the burden of the citizens who come before it, just to resolve time constraint problems.

But that is essentially the message imparted by the Chief Justice to Mr. Arcand, and it should scare you as it does me. More emphasis is now placed on the speed in which “Case Protocols” are completed, filed and adhered to rather than whether each party has the requisite time to analyse and counter various forms of proof filed into the Court record by the other party. When a party only receives an expert report filed less than 1 month before the trial date a report with annexes totalling hundreds of thousands of pages to be reviewed, but not given adequate time or the ability to file a counter expertise, justice is being sacrificed for speed at the sole cost of the disfavoured party. It is nothing short of outrageous to a profession that purports to be fair to all who come before it.  It is the beginning of the end to the application of law for the sake of some arbitrary dictum of rules made to advantage Courts and disadvantage the people.

And so I come back to the premise of this article, Depression. Not only does subjugating the law to speed do a disservice to our justice system, but it adds to the factors of depression that befall the client, and now the attorney(s) representing that client. Yes, I mean that lawyers who, by having their hands virtually tied behind their backs while being forced to proceed to trial unable to properly put forth necessary and crucial evidence for the client, also fall victims to depression, an affliction the public rarely hears about as lawyers are more often than not described as vultures without any attention paid to the toll, despair and frustration placed upon lawyers in the face of this new mission to accelerate the process without regards for the consequences resulting from these rules.

Me. Hammerschmid has practiced Family Law since 1982; Senior Partner at Hammerschmid & Associates; founding & current member of Family Law Association of Quebec (past Secretary for 28 years). Inquiries treated confidentially: 514-846-1013 or [email protected] © 2016 Linda Hammerschmid 

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