In the 19th Century, English
Philosopher Jeremy Bentham warned against secrecy in the
administration of justice: “Where
there is no publicity there is no justice. Publicity is
the very soul of justice. It is the keenest spur to
exertion and the surest of all guards against improbity.
It keeps the judge himself while trying under trial.” Those
words still ring true today. In countries sharing the
common law tradition, the open courts principle is a
fundamental, indeed a constitutional principle.
Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
Hearing before Justice Yamauchi to set the date for Domestic Special
Justice Yamauchi wants to hear the merits of the future application
The court procedure is clear. The litigants must file their evidence, in the form of sworn affidavit, and that is what they argue before the Justice. The reality is very different. Litigant can show up before Justice Yamauchi, having not filed any evidence at all, present whatever the Justice needs to hear to grant her impromptu application, and Justice Yamauchi will oblige.
The Rules which rational person would expect that Justice Yamauchi knows and would follow
The document titled "Family Law Practice Note 2" is issued by the Court of Queen's Bench, and it specifies how family law applications are to be made to the Court. It is pretty clear (paragraph 5) that the onus is on the Applicant to estimate the time required to hear the application. If it will take more than 20 minutes, the Applicant must obtain a date for Special Chambers (either 1 hour long, or half day long hearing). To schedule the Special Chambers application, the Applicant and the Respondent need to agree on a mutually acceptable date. If the Respondent does not agree (and they would not if they think they will lose it!), it becomes two step process -- first, the Applicant has to make another application just to set the date. Another document obtained from the Court Clerk, titled "Information on Special Family Law Chambers Applications in Calgary" is quite clear on the procedure:
"If you and the other party do not agree, you should make an application through the normal process to be heard in Regular Chambers. The Chambers Justice will then order a Special. The clerk in the courtroom will offer you several dates, and the parties will choose one. The Justice will then put that date into a court order."
The Application and the Evidence
The father's application
The father's affidavit, the only evidence filed
The Order of Justice Yamauchi
The order of Justice Yamauchi
I would expect much better performance from a person who is paid some $350,000/year. Namely, at minimum, read the evidence, know the rules, and follow them.