Globe and Mail

Judge's 'ribald' remark excused

Appeal court rules divorce case not tainted by informal banter during proceedings

BY MARGARET PHILP, TORONTO
The Globe and Mail
Saturday, May 19, 2001

A judge's ribald remarks uttered in the privacy of her chambers were not enough to create the appearance of bias, an Ontario court ruled yesterday in tossing out an appeal of the settlement of an acrimonious divorce.

Only the lawyers and Madam Justice Helen MacLeod know exactly what was said behind closed doors in the chambers of a Kingston courthouse. It was apparently a somewhat off-colour, decidedly injudicious remark about marriage being a bad idea for women, but none of the lawyers involved in the case will divulge what Judge MacLeod said in the bitter dispute over the spoils of marriage.

"I would never repeat it in mixed company," said Clinton Culic, the appeal lawyer for the husband, James Coathup. "If you saw the two comments in question, and you came to the mild interpretation that that's all that they meant, I'd be very surprised."

Affidavits by the two divorce lawyers filed in court are sealed, but according to the appeal lawyers involved, they provide conflicting accounts of the precise words.

What no one disputes is that the statements, in the words of the ruling, were "ribald" and could be interpreted to mean "marriage was not a great idea for women." At the time she blurted the words out, Judge MacLeod was in the midst of her own divorce. Her words seemed directed at Mr. Coathup's divorce lawyer, Mary Jo Raycroft, who had chatted to the judge about the breakdown of her own marriage 18 months before.

Ms. Raycroft, who describes, herself in the affidavit as "well known for making ribald remarks" herself, was far from shocked by her exchange with Judge MacLeod.

"Whatever was said in chambers in this case, in my view, was blown entirely out of proportion, and the Court of Appeal found that it was and found that there was absolutely no basis to believe that this would create bias in the mind of any reasonable person," Stephen Grant, the lawyer for Jacqueline Coathup, said.

The Appeal was launched after Mr. Coathup wanted to hear what had happened in a meeting between the divorce lawyers and the judge. Ms. Raycroft, much to her regret, recounted all that was said, including the salty remarks about marriage and women.

Enraged, Mr. Coathup launched an appeal. In building the case that Judge MacLeod was biased, his appeal lawyer, Mr. Culic, pulled the file on her divorce and discovered that her marriage was legally annulled the same day that a settlement was struck in Mr. Coathup's divorce.

"All I cared about is that it looked bad," Mr. Culic said. "It really looked bad."

The Coathups divorced after a quarter-century of marriage. They have two daughters. By the time the divorce became legal last year, court documents show that they had spent $72,252 in legal fees and the battle had eaten up most of their equity in the family home.

In dismissing any appearance of bias, the three-judge panel of the Ontario Court of Appeal said they "deplore the fact that the appellant's counsel on appeal arranged to have the trial judge's personal divorce file examined in the hope of producing evidence to support this application," they wrote.

"... The trial judge made no secret of her divorce proceedings, and it was she who told both trial counsel on February 14, 2000, that her divorce had been made final that day."

With more and more family-law cases being settled outside the courtroom, beyond the earshot of splitting couples and court reporters, informal chatter between judges and lawyers is common, especially in smaller communities such as Kingston where almost everyone knows everyone else, Toronto family lawyer, Carol Curtis said.

"Whether people like it or not, there are these informal discussions and they do facilitate settlement in family law. There is no question about that," she said. "But should it slide into unbusiness-like language? No, if shouldn't.''

Copyright 2001 Globe Interactive, a division of Bell Globemedia Publishing Inc.