The Saskatchewan Chief Justice, The Honourable Mr. Justice Martel Popescul, knows there is a serious problem occurring in the Saskatchewan Legal Arena. Domestic Violence advocates know it as well, and a trend has surfaced: Educate the judges on matters involving Domestic Violence and child custody.
Organizations, such as the Provincial Association of Transition Houses and Services of Saskatchewan (PATHS), is a progressive step and effort towards providing research and education. They aim to inform the public and judicial about Domestic Violence (DV), also known as Intimate Partner Violence (IPV), and child abuse in child custody cases. However, when it comes to the cultural norms of a dominant culture traditionally ruling in court proceedings and determining what is socially acceptable in child custody matters, the cycle of injustice can repeat.
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| image from disinherited.com, Interpretation of Court Orders |
In The Tradition of Family Court, The Ultimate Educator is The Judge Issuing Child Custody Court Orders
In the long standing Tradition of Family Court, the ultimate educator on the cultural values that are protected lie solely on the judge who issues child custody court orders. The court orders provide the parents, children and the public with an education on the court's interpretation of justice. This perception is strongly formed by dominant cultural beliefs. The court order then becomes an example for public spectators as well.
Court orders dictate what kind of conduct is unacceptable, and what is socially acceptable in Saskatchewan's dominant colonial culture.
Recently, Saskatchewan, Canada and the World witnessed Colin Thatcher being invited to a political event. A Throne Speech. Thatcher is a reknown wife killer and former Saskatchewan cabinet minister. He was convicted of first-degree murder in 1984 for killing his ex-wife, JoAnn Wilson. The Saskatchewan Government did not see a problem with Thatcher's invited attendance to the Throne, welcoming him.
Culture matters...
It is important to remember that, traditionally, a judge is the ultimate authority in Family Law Court Orders while enjoying the privilege of immunity from accountability a vast majority of the time. He or She does not have to answer to anyone. He or She does not suffer the consequences and years of destruction due to their decisions. They rule by Tradition. In the legal arena, it is no secret that Tradition is highly valued, proudly coveted, openly embraced and proclaimed with pride, including at legal conferences.
Tradition matters...
What Is Tradition?
Tradition is defined and based on a long lineage of accepted and practiced societal norms and beliefs embraced by the dominant culture and their core values. It has a powerful influence and energy within established cultures, such as in the King's Chambers. In Sociological terms, Tradition refers to "the beliefs and practices handed down from the past". (Sociology Guide, 2023).
Traditionalism further embodies "the psychic attitudes that glorify past beliefs and practices indispensible for the society" (*Emphasis mine). In a traditional society, these attributes and foundational belief systems and traits are further "characterized by the dominance of traditions, organization based on kinship, ascriptive status and hierarchical social order." (Sociology Guide, 2023).
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| Image from Campbell River Advocacy, British Columbia |
The Matter of Legal Advocacy
When it comes to the matter of legal advocacy, both from lawyers and domestic violence/human rights advocates, cultural influences cause clashes. These cultural clashes can create serious consequences in family law and child custody cases in Saskatchewan, Canada.
A trend has emerged over the past decade with Child Custody Court Orders. They are increasingly in favour of abusive men, many who are culturally appropriate in the eyes of the Saskatchewan court. This creates devastating consequences to children, mothers, families and society at large with blatant violations to the Canadian Charter of Rights in many cases.
To better understand the power of the judicial, it is insightful to hear members of that elite club speak. The Honourable Mr. Justice Joseph W. Quinn provided some insight into the traditions of a courtroom and how family law rulings can be made by a judge, while discussing the importance of legal advocacy:
Most annoyances [to a judge] are merely a matter of advocacy; and, good advocacy is as much about knowing all of the things that you should not do [in a courtroom] as it is about being aware of those things that you should do... In the last 100 years or so, countless books, chapters and articles on courtroom advocacy have been penned by renowned jurists and brilliant counsel. Perhaps it might be helpful for you now to hear from someone in the mid-range of the intellectual spectrum...
Successful advocacy is rarely the result of a single overriding ability. Instead, it consists of an accumulation of little skills coupled with the avoidance of annoyances such as those that I will mention. I become misty eyed when I see a lawyer acting lawyerly in Family Court because I realize how difficult that is to do. I know that Family Court drains from me all things judicial, leaving me feeling like an overdressed social worker. (Quinn, 2012, p 1 footnotes, emphasis/bolding mine.)
Thus, the importance of Advocacy. Know thy court culture. Advocacy matters, particularly on behalf of various cultures outside the courtroom as well.
Culture Clashes & Advocacy: Who Is Educating Who?
Culture clashes occur with advocacy. Even with government passing laws and amending them, the ultimate test occurs with a resulting Custody Court Order. Court Orders dictate what is perceived as appropriate conduct, and are to be obeyed. They serve as guidelines in proceeding final legal arguments in family court. Judicial independence determines what a child custody court order will define as acceptable and appropriate conduct based on the judicial's moral and cultural perspectives, regardless of existing laws in place.
Should the judge feel certain orders are required based on what he/she believes is appropriate conduct, this causes restrictions and punishments for parents to be put into place. If a judge sees no issue with abusive conduct, he or she can order that abuse is appropriate. The resulting court order becomes a reflection and representation of the accepted societal and cultural norms as decided by a representative of the dominant culture's values and morals: the judge.
Remember: Even though a judge is appointed by government officials, they answer to no one. They are free to interpret the law and issue court orders based on their perceptions and interpretation of laws deemed acceptable cultural practices due to judicial independence.
Government appointed judges escape government monitoring, or so it appears. For instance, The Honourable Mr. Justice Joseph W. Quinn, Ontario Superior Court of Justice, stated at the 2012 Family Law Institute in Toronto on February 10, 2012 clarified what appropriate courtroom conduct is, and the resulting court orders:
[51] Orders are not supposed to tell a story; they order someone to do or not to do something. Orders should not read like reasons for a decision. (Quinn, 2012, p. 15)
This provides further insight into a judge's point of view and thinking. These insightful point of views from a judge assists us with understanding the traditional, dominant culture of Canadian courtrooms. You can read more about a judge's insight in the online document entitled A judge’s view: things lawyers do that annoy judges; things they do that impress judges.
Conclusion
In Family Law, while considering culture and tradition, it is important to consider which culture dominates. It is difficult for traditional cultural values to adapt and/or change. Understanding the perspective of the dominant culture is a requirement when seeking positive changes in Family Law.
Family Laws may amend, and new Laws may be passed by legislature, however, judicial independence will ultimately decide if those progressive laws are embraced or ignored. According to the Provincial Court of British Columbia, Judicial Independence is ultimately defined as "judicial officers of the Court have the freedom to decide each case on its own merits, without interference or influence of any kind from any source, including another branch of government".
SOURCES:
Provincial Court of British Columbia. 2020. Judicial Independence. Office of the Chief Judge.
Sociology Guide: A student's guide to Sociology. 2023. A Sociology Guide.com.
The Honourable Mr. Justice Joseph W. Quinn, "A judge’s view: things lawyers do that annoy judges; things they do that impress judges" PDF from the 2012 Family Law Institute in Toronto, February 10, 2012.
