Divorce·Written on behalf of Mincher Koeman·Posted on May 21, 2019
Can I Send a Letter to a Judge Without Notifying the Other Side?
Can I send a letter to a Judge without notifying the other side? The simple answer is no!
No-one should be communicating with a Judge, mediator or arbitrator ex-parte (without notice).
As Ms. Elizabeth Aspinall, Practice Advisor for the Law Society, recently pointed out in the Canadian Bar Association article, Exceptional Communications: The Ethics of Ex Parte Communications
“The scale of justice symbolises the court’s consideration of each side of every case. Fairness and public faith in the judicial system require that balance. If courts are perceived as hearing only one side of a dispute, a reasonable apprehension of bias may arise. At best, that may result in a decision being set aside or appealed; at worst it undermines public confidence.” (CBA, 2018)
The rule for all communications with the court is that notice must be provided to the opposing party unless a valid exception applies.
As Ms. Aspinall confirms in the article, this is one of the main areas of complaint but still it occurs. It is important that if a lawyer is communicating directly with the court without providing notice this is a reportable offence under the Alberta Law Society Code of Conduct and the Lawyer can be sanctioned by the Law Society. However, if the person communicating with the court or decision-maker is a self-represented party or someone who is providing litigation support such as a para-legal or divorce specialist they are not bound by the same Code of Conduct, and their behaviour will go unsanctioned unless the court addresses this matter directly with costs or directions to the offending party confirming that they will not accept the communication.
It is for this reason that many high-conflict personalities choose to self-represent as their behaviour is often not sanctioned by the court, and they are not bound by the same ethical rules that lawyers are bound by, rules which have been developed to ensure Justice is not only done, but is seen to be done.