Judge breaks up with couple in high conflict divorce

First they drove each other nuts. Now a bickering Lower Mainland couple have pushed the patience of a provincial court judge beyond the breaking point.

In an unusually frank decision, Judge Bryce Dyer has essentially broken up with the pair. It's not them, he says — it's him.

"In a sense, I am a known quantity. I believe the time has come for these parties to face perhaps an unknown quantity, a new judge in this court, if they cannot ... reach agreement themselves," Dyer wrote at the conclusion of a lengthy ruling last month.

"I think having to face a new judge who knows nothing about them will add a strong incentive or impetus to their resolving issues outside court, rather than litigating them before a known judge."

'Fighting to the death'

While it's not unusual for judges to find ways to hand litigants off to other judges, family law observers say they're not often so frank about the need for parties to try their luck with someone else.

The case — which involves a North Vancouver mother known as Z.S.R. and a Burnaby father known as R.S — provides a glimpse into the myriad of issues which can plague high-conflict divorce cases: the clash of parenting styles; the length of breastfeeding; poor communication and mostly, the need for compromise.

Dyer points out that both parents love their nearly-four-year-old daughter very much and both are capable of caring for her responsibly.

And yet he has to order the mother to stop sending the father's emails to junk mail and tell the father to "appreciate that his emails are to be polite and not bullying in content."

Family lawyer Leisha Murphy isn't involved in the case. But she says the behaviour involved is sadly familiar.

"What bothers me as a lawyer isn't so much that this is a little bit ridiculous, but it's that couples can't see beyond their own narrative, and they think they're acting in the child's best interest," she said.

"But if they stepped back and actually looked at the situation, maybe letting a certain issue go that isn't that important is better for the child than fighting it to the death."

Compromise tough - but 'not rocket science'

Z.S.R and R.S. are both accountants. They were in front of the judge on the father's application to vary a 2013 order which saw the mother granted the bulk of access. The father has some overnight visits at present but wants to increase his share of parenting time to 50/50.

The daughter, A, is still breastfeeding, which Dyer says should stop as she approaches four years. He cites a case in which another father complained that extending breastfeeding past the age of two was "used to restrict his access."

Z.S.R. was "very critical" of the father's failure to ensure the daughter had naps when they were together. The mother even went so far as to assemble a chart to prove her point.

"I accept that it is important for a child to have a routine, but ... having one, with the hope or wish that it be exactly the same, where two parents are separated, in each of their households is not realistic, in my view," Dyer wrote.

"This is not rocket science, but unhappily compromising is a concept that these two parents seem to struggle with at times."

The words 'LIAR' in block letters

The mother co-sleeps with the child during their nights together; as a result, the father testified that he also slept in the same room or on the floor with a sleeping bag when he has his daughter:

"It was my understanding that he did so based on his own admission not really to comfort A. particularly or give her any enhanced security," Dyer wrote. "But rather to gather evidence for this case."

And speaking of evidence, Dyer also ordered the father and his brother to stop filming the mother as a means to prove their claim that she's being untruthful. The judge said the brother once made a sign which he showed to Z.S.R with the word "LIAR" written in block letters.

"This latter conduct is infantile and exceedingly inappropriate, unhelpful and cannot help but be a destructive element in the relationship between these two parents," Dyer wrote.

"Whatever the faults of the Mother, and she has some, she ought not to be exposed to such behaviour."

'Put it in a draft and think about it'

Murphy says the case reflects a number of trends in family law. She says the majority of the women she sees are breastfeeding, as opposed to using formula, which means fathers usually have to work around a schedule in the first two years.

She says there has been a move towards the acceptance of the idea that parents should have autonomy over what happens during their parenting time.

In 2013, the Family Law Act gave B.C. judges the ability to give orders in relation to the way that parties involved in a divorce are to communicate. Murphy says clients might be told they can only speak through email and what they say has to be factual and only involving the child.

"I always tell my clients, before you send an email put it in a draft and think about it. People just get upset and then the texts and emails are flying, and it winds up in an affidavit and looks bad down the road," she said.

Dyer's decision ends with an order which Murphy applauds — but which is unusual. He tells them to stay out of court.

"There is to be a minimum two years' peace between these two parents during which they can practise their compromising skills," the judge wrote.

"The litigation process is not to be used by one to either bully or seek control over the other."