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Fixing "the zoo" — one judge's perspective

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One could be excused for thinking that Manitoba's courtrooms of Manitoba are dry, boring and placid places where the pretence is that a higher sensibility is always engaged. Often it is, to be frank.

But observers have obviously never been to the Court of Queen's Bench Family Division's "uncontested motions list" courtroom — where it appears it's a bit of a boisterous and untameable wild west, a place of "chaos" where "things are done on the fly."

And that's not cool any longer, as Justice Marianne Rivoalen bluntly lays out in a recent published decision that puts the conduct of lawyers and others appearing in this bustling venue on blast.

It's rare, perhaps extremely so, for a judge to chide lawyers over their conduct. 

But you have to wake up and pay due attention when a QB judge publishes a written decision deriding family court lawyers for showing a "serious lack of professionalism," who even, at times, engaging in "locker room" behaviour while seemingly at work inside a court of law.

But that's exactly what Justice Rivoalen has done, likely out of frustration in dealing with a case where the atmosphere of the room where uncontested family motions take place played a major role in how it became somewhat botched.

The UCML happens every Tuesday at 9 p.m., and its docket frequently sees more than 100 items to be dealt with. A motions co-ordinator (an administrative staffer) triages the docket and refers matters as needed to two standby judges and a master as needed. (These facts are cited by Rivoalen in a Nov. 14 written decision I came across today).

The matters the administrator is unable to deal with — remember it's supposed to be an "uncontested" list — are to be parcelled out to the judges and master to deal with.

As Rivoalen notes, the judge doesn't get the case file until it's been triaged to him/her, so they're likely unfamiliar with the file when they get it. It's the same for the standby masters, as well, she notes — but they deal with slightly different issues, often procedural.

"Things are done on the fly," Rivoalen says, adding as almost a sidebar that there's a clear distinction not being followed as to what should go before a master and what should go before a judge.

"Still, lawyers sometimes circumvent this procedural directive. That must stop. This is a reminder to counsel. Lawyers who ignore this may find their time wasted and that the consequences of their efforts sound in costs when requested by counsel who oppose the circumvention of this directive," Rivoalen writes.

In other words: Do an end run around the rules, and face the prospect of a bill down the road.

But there's bigger issues, she suggests.

And they arrive from the seeming chaos that unfolds in the UCML courtroom.

Rivoalen refers to the number of resources (the beleaguered motions co-ordinator, sheriffs, courts administrators, clerks, etc.) which are "fully engaged" in seeing that this busy weekly docket get dealt with.

The convention, she says, is that motions allocated to the standby judges are expected to be dealt with and disposed of in no more than five minutes.

But trying to create order out of "chaos" — Rivoalen's word — has devolved the state of affairs to the point that the forum is derisively dubbed "the zoo" by court staff and lawyers.

I'll let her take it from here. I was actually kind of surprised at how blunt Rivoalen is in her assessment. She's obviously unhappy at how things are playing out. 

"There is reason for their ridicule. Many lawyers in the courtroom waiting to speak to their matters use their time to socialize. They chat away and catch up with their colleagues. Insufficient respect is shown to the Family Motions Coordinator, who is not vested with the authority to order costs or pronounce contempt orders. 

Decorum goes out the window. Not infrequently noise levels are so high that he or she has difficulty conducting the docket properly. To make matters worse, the courtroom is often overflowing with lawyers, their clients and a large contingent of self-represented parties. Finally, the high-conflict nature of many matters on the List contributes further to its degradation because lawyers and parties are not always at their best under these conditions.

What flows from the foregoing is too often a serious lack of professionalism. Recently there were reports of locker-room behavior occurring in the courtroom while the List was being conducted. The scene overall has done little to protect the List from falling into disarray and disrepute.  This reflects poorly on the lawyers who appear on the List and on the Family Division across the board. 

Consequently, changes need to be made. 

It was recently decided, for example, that the List would be monitored so that a digital recording of the proceedings could be accessed when necessary. Moreover, the List itself will be undergoing substantive changes. Within weeks of this decision's release, litigants who are applying to set aside or revoke protection orders, the majority of whom are self-represented, will no longer be appearing on the List (ed note: this appears to have happened post-haste).

A separate list will be established for their purposes. Other procedural changes are now under consideration to redress the situation further."

[EDIT 26/11/2-13: Fixes largely incomprehensible lead paragraph]. 

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About James Turner

James Turner rejoined the Free Press as a justice-beat reporter in August 2013 after a number of years away working at other media outlets, including the Winnipeg Sun and CBC Manitoba.

A reporter in Winnipeg since 2005, he got his first taste of the justice beat as a former Free Press intern, then as the newspaper's police reporter from 2008-09.

Among the topics he's eager to cover are youth crime, street gangs, child-welfare and how the mental health and justice systems intersect.

An avid blogger and early adopter of Twitter, James (@heyjturner) loves to write long, much to the frustration of his editors.

He despises animal cruelty. He loves 80s music and his tubby labrador retriever.

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