When families split apart, they don’t always stick around in the same province. Sometimes that gives rise to challenge circumstances for resolving proceedings or updating support orders.
- There’s an old saying: “Two Heads Are Better Than One”.
- But not when it comes to trial judges.
- Two judges. Each hearing different parts of the case. On different dates, many months apart. Having to make decisions on the same case.
- It may sound good on paper.
- It may even seem like the only practical way to deal with motions to change support, where parties live in different parts of the country and neither can afford to travel.
- But except in the simplest of cases, it creates an almost impossible task for judges who are:
1. Accustomed to hearing both sides of the story at the same time.
2. Unaccustomed to wading into the realm of advocacy, by leading or cross-examining the evidence.
The Act allows for parties to apply in the province where they reside, after which a provisional order is made, but has no force and effect until confirmed by the court in the jurisdiction where the other party is found. The court receiving the provisional order can refuse to do so, confirm it with variations or without, or remit it back to the original court on further evidence.
The court never hears from both parties at the same time, and will never know at the time of hearing whether conflicting evidence will be adduced by the other side until after the provisional order is made. However, the process is intended to alleviate some of the inherent unfairness of a party having an order made without their presence.
The lack of cross examination of the evidence puts judges presiding over these matters in a challenging situation, but they may refer to findings of credibility made by the other judge.
In this case, the effect of the bifurcated process meant that support orders were largely ignored for the majority of the children’s lives. The provisional order effectively suspended support enforcement in both provinces.
Before ruling on the case, ultimately addressing the provisional order and the ineffectiveness of the enforcement mechanisms, Justice Pararatz commented,
54. If the bifurcated provisional order system is somehow intended to save money or promote efficiency, this case is a classic example that neither of those objectives is being promoted
54. If anyone ever did a financial analysis of the real cost of having two judges, in different provinces, in different years, trying to piece these puzzles together – it would soon become apparent that in this age of Skype and inexpensive travel, better options exist.
Although I don’t agree that travel is always so inexpensive, the technological options and the ability to hold court with parties across Canada is certainly a better alternative.