Back to Basics: ‘It’s not what happened that matters to the court, only what you can prove happened’

I hope that’s an accurate quote.  I tried to remember it exactly as I heard it last week in Hamilton where Justice Harvey Brownstone talked about his book, Tug of War.  While he had a lot of informative and entertaining things to say about the family law system in Canada, this stuck out in my mind the most.  It is the most basic information that someone going to court needs to know, but often doesn’t have a clue about.  In our court system you have to present proof of everything you want the court to consider.  Our courts are not inquisitive; they are not information-gatherers; they don’t seek out the truth unless you present evidence supporting your version of events.  A judge can and should only consider the evidence before him or her in this adversarial system of ours; it’s how the system is meant to work.  The story you want to tell in court doesn’t really matter if you don’t have evidence to back it up.  I think what Justice Brownstone is trying to tell us is that a person may want to go to court to hash things out with the other person in a family breakdown situation, but our courts are not meant for that; and that’s why so many people are disappointed when they finally get to have their ‘day in court.’  Instead of getting to tell the judge about all the wrongdoing and hurt feelings in the relationship, people are faced with being forced to present the facts of the case and evidence to back them up.  Someone not represented by a lawyer in family court may not understand this kind of distinction until they’re standing before a judge.  And that’s way too late to figure out this very basic legal information!  But how can people be expected to know this when they haven’t been legally trained?  Not all of us have had the “the facts and just the facts” drummed into our heads year after year in law school, like lawyers have.  To sum up what Justice Brownstone is trying to tell everyone, our adversarial court system doesn’t work well for family law matters.  What people usually need in family breakdown situations is a an effective, efficient, and fair way to work out their disputes; and the adversarial (i.e., only evidence and proof matter) family law system does not provide this.  He suggests that what people really need is counselling to work out their problems instead of a court in most instances (he does allow for certain scenarios where the court must be involved of course).  So, why are courts not suitable for family law cases?  Because what happened doesn’t matter to the court; and in family breakdown situations, what happened is the most important thing to the family involved.


Nancy Kinney
AdviceScene Founder
Democratizing the law one question at a time


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