I liked this opinion by Justice Goldman. Really well done.
It's a divorce case in which the wife says that the date of separation is 2012 but the husband says it's 2020. They're ready to go to trial on the separation date issue when the trial judge sua sponte notices that the wife's divorce petition alleges a separation date of 2020 as well, so holds this to be a judicial admission of the relevant date and enters judgment accordingly.
The Court of Appeal says: No dice. Which, in my view, is exactly the right result. We're not England in the 1700s. We prefer adjudication on the merits, not pleading errors. Both sides knew for years that the wife was claiming a 2012 separation date, and both sides were ready to dispute that issue at trial. No reason to hold the wife to an erroneous date in her pleading. (Justice Goldman gets there a slightly different way, but we end up in the same place.)
Plus, I think the Court of Appeal was right to not reassign the matter to a different judge on remand. I'm not extraordinarily pleased by what it seems like to me was the trial judge's penurious take on pleadings and the need to avoid a trial that everyone was completely ready for. But that doesn't establish bias or any reason for a new judge. Just try again.
On an entirely different note, as I read the opinion, I was struck -- and had a particular reaction -- to the wife's selection of counsel here. In 2020, she initially files for dissolution pro per. Then, in early 2021, she hires her first attorney, Fox & Bank, who substitutes in. The next year, in 2022, she decides to retain new counsel, Lisa Radcliffe. Only a month later, she hires yet new counsel. Then, the next year, 2023, she retains new counsel yet again. Can you guess what happens in 2024, as the case is about to go to trial? Yep. She retains new counsel again. Oh, and when she loses below, on appeal, it looks like she retains new counsel yet again.
When it's a divorce case and one of the spouses hires a new lawyer every single year, for a total of around a half dozen of them, I have a particular view of both the litigant as well as the underlying litigation. For whatever that's worth.
Oh, and I'm not sure what's up with the Court of Appeal only referring to the last three of the wife's lawyers by their initials -- "M.C.", "J.R." and "C.L." I'm sure they're not minors. I'm confident there's no allegation of sexual abuse by the attorneys or anything like that. And the opinion expressly mentions the full name of the other lawyers. I wonder what the deal is there? Seem strange.
Nonetheless: A well-written and persuasive opinion that seems to me to obtain an entirely just result. (Even if, on remand, I gently suspect that the losing party on appeal will probably end up prevailing on the merits.)
