Judge Gay Benns – The Provincial Court Process for Individuals Experiencing Separation (#5)

Jeannine Crofton

This is Family Law Matters, a podcast series that introduces you to mental health and legal professionals in the area of family law. We’ll be talking to experts who guide moms, dads and children along transitions of separation and divorce. My name is Jeannine Crofton, the principal at Resolvology Inc.. I’m a family law mediator in Alberta and a psychologist in Alberta and Ontario. My hope is to provide information and a bit of optimism to listeners who are in the midst of restructuring their families. Before we begin, just a quick reminder that information heard on this podcast is not to be construed as psychological, financial or legal advice. Please consult a professional concerning your specific circumstances. In our fifth and final episode of Family Law Matters, we are pleased to have Provincial Court Judge Gay Benns share her ideas with our listeners about the families she sees in court and how she is tasked to help families. See a bio for Gay Benns on my website at resolveology.com.

 

Jeannine Crofton

So welcome. Judge Benns, thanks so much for joining us. Can you tell us a little bit about your interest in law and in particular, family law?

 

Judge Gay Benns

Well, first of all Jeannine, thanks for having me. This is an exciting opportunity for me, so I am glad to be with you and talk about family law for sure. I went to law school in Manitoba, and I was older when I went to law school, and it just seemed to me that the family law cases, we all had to do family law in law school. It was a required program or course in Manitoba. I don’t know if every law school is like that or not, but they were always the most interesting cases, right? I mean, they would tell stories of actual people and problems that I can imagine, rather than securities law or other more mundane topics. So, I always love to read the cases for family law, the very best. So that’s where it got started for sure.

 

Jeannine Crofton

And then you finished law school and you had to make some choices. Did you go into family law right away?

 

Judge Gay Benns

Yeah. My articles were with Legal Aid in Manitoba, which worked out for me for a variety of reasons. It was just a really great experience. I had lots of court experience with Legal Aid and lots of opportunities to have my own clients with Legal Aid as an articulating student, which was really amazing.

 

 

Yeah.

 

Judge Gay Benns

So, then I practiced in Manitoba for a couple of years, and then I had a great opportunity to join a dedicated family law firm in Calgary. I left at that opportunity and have been here ever since.

 

Jeannine Crofton

And you’ve been appointed to the Provincial Court in Alberta. What year were you appointed?

 

Judge Gay Benns

Yes. So that was an exciting time. I was appointed two years ago in 2019. I was as shocked as anyone that they would have me, but here I am, and it was really great I’m in the family and youth division of our Provincial Court, and it is such a dedicated group of people who really want to make things better for families in Alberta and that we have dedicated judges for family law. We also do our child protection work and the youth criminal matters in Alberta. Surprisingly, the crossover of people from family law, child protection and youth criminal are surprising to me. But that’s why I think why that combination works out so well.

 

Jeannine Crofton

Right. When you think about being a judge, I think we all watched movies and we have our own ideas that have been formed probably by popular media about what judges do. I was hoping that you could share what the role of a judge is and what are the limitations of your role.

 

Judge Gay Benns

Well, so the Provincial Court in Alberta is our lowest level of court. We have three or four if you include the Supreme Court of Canada. We have four levels of court in Alberta, but our court is really the lowest level. We are statute driven. We don’t get to make up new law. We just follow other cases, precedents that have happened before us and the legislation that is the foundation of any application before us. The Court of Queen’s bench in Alberta has a little bit different, broader jurisdiction. And of course, the court of appeal and Supreme Court have different jurisdictions as well. So, we’re the first stop for most families. But families of divorce fall under different legislation, and they would be in the Court of Queen’s bench. So that said, that’s the sort of legal framework. But I refer to our court as the problem-solving court. We’re the people’s court. We are like the emergency room. You don’t know what’s coming in at any given time. And we’re just trying to problem solve with people. And we have such a high number of self-represented people. This is very often their first contact with the legal system.

 

Judge Gay Benns

We want to make sure that we’re setting them up properly, getting them to the right resources and getting them down the right track towards resolution if there’s a dispute in their family law matter.

 

Jeannine Crofton

I think that’s important because so many people and I’ve spoken to them say, well, if we get separated, that means we have to have a lawyer for going to court. And the fact that the number of people coming to court who are self-representing, that must present some unique challenges and opportunities for you.

 

Judge Gay Benns

Yeah. Well, challenges for sure, because so many people can’t afford lawyers.

 

Jeannine Crofton

Right. And in some ways, we don’t want court to be prohibitive. We don’t want them to not be able to be in court.

 

Judge Gay Benns

No. But I always worry. I think there’s some misconception among people that on separation they have to go to court. Right. There has to be a big fight. They have no experience in this area. All they see is what they see on television or hear horror stories from their friends or neighbors. And they think it has to be a big fight. And that the first stop has to be a courtroom where anybody in the system will say, no, that has to be the last stop. Right. That’s the last place you want to be talking about your family, and you need to do some research and investigation about what options are available to you. And I don’t know that we get that information out to people very well, and I don’t know how to do it. I think lots of people are trying to make it clear that people can work on things on their own and make resources available to people so that they can have some help working on things on their own to make sure that they’ve attempted every possible solution before coming to court, because court is an adversarial process. It was a process that was set up to talk about kegs of ale and pieces of land, really.

 

Judge Gay Benns

It was never set up to talk about families, and it’s just evolved over time. That’s what we use. But it was never intended for families.

 

Jeannine Crofton

Right. So as a psychologist and a family mediator, I think I’m on the same page as you in terms, and we’ve done some work in the past together where it’s important at the very first stages of contact to try and help people understand what the many options are. And one of those options is mediation, of course. And you have a particular interest in mediation. Tell us about your view about how it can be useful for folks.

 

Judge Gay Benns

Well, it’s so interesting to me that mediation has such an incredible success rate. Right. It is an opportunity for people to learn how to communicate, because I think if you’re coparenting after separation, you have to communicate better than you ever did before. Mediation is an opportunity to learn some really good communication skills. First of all, it’s cooperative. It’s a family working on their issues with a neutral facilitator. Right. Facilitating that conversation, keeping them on track, helping them distinguish between emotional issues and legal issues, and trying to problem solve with them in a way that would come up with a unique solution for that family. If you’re coming to court, I’m going to impose something on you that I hope works okay, that I hope will be satisfactory and in the best interest of your children. But I’ll never meet your children. I don’t know if somebody is I don’t know, hates to sleep in the dark and somebody hates to sleep with socks on. I don’t know what the deal is with your kids, but only the parents know these things, and the judge will never know those things. It’s always better if the parents can find a solution that works for the kids rather than something that I’m going to oppose that may or may not work, but it’s worked for lots of families in my experience.

 

Judge Gay Benns

So that’s what I’m going to do. Does that make sense?

 

Jeannine Crofton

Yeah. And I think what we find is that when someone comes to a private mediator or government services where they provide mediation services is that often they can narrow the sort of the issues that might need to come before a judge. So, if they can do an 80% agreement before they even come to court, then that makes the work that you’re doing with them, I think, just much narrower than what you would have otherwise had to do.

 

Judge Gay Benns

Oh, absolutely. You think of the family is walking into the courtroom with this wagon load of problems. Right. And if we can unload some of those before they get to court, and then sometimes there are tricky issues that do need some assistance. Right. Maybe there’s mental health issues or maybe there is a real legal issue, which is rare, frankly, but sometimes they are there. Those do need the assistance of a judge, and those should be before a judge. But whether pick up and drop off time is. 02:00 in the afternoon or. 05:00 in the afternoon, whether Christmas should be split at noon on Christmas Day or whether it should be Boxing Day, the minutiae parents should be able to do on their own without putting it before a judge.

 

 

Right? Yeah.

 

Jeannine Crofton

Because as you said, the answers that they’re going to get from you may or may not actually meet both of their needs. And in mediation, what we try and do is take all of their needs and see which of the solutions that we can possibly come up with would actually suit both of them. What I’ve seen so much of the time is that understanding what the needs are underneath the wants is the tricky part. And so that’s why sitting in an office with somebody where there’s not near as much pressure, where there’s lots of support in that environment to try and help them work through something is a little bit different than when they’re coming before a judge.

 

Judge Gay Benns

Yeah. No, for sure. I used to teach the parenting after separation program that I know that you’re familiar with to me. And one of the stories I used to tell people is that all disputes among parents, we can’t blame them on the other parent. Always there may be other reasonable explanations, but we’re so quick to point the finger at the other parent that all of a sudden, it’s World War II. So, the example that I used to give to people was there was a family where the child was splitting his time between parents. One lived just outside of Calgary and the other one lived in Calgary. And suddenly the pre-adolescent child decided that they didn’t want to go to the parent that lived just outside of Calgary. He didn’t want to go back and forth anymore. And it was the mom I think in Calgary just took great advantage of this thing. Oh, well, he doesn’t want to see his dad. Dad’s been a jerk. He doesn’t want anything to do with his dad. And I’m going to go to court to vary this order so that he never has to see his dad again.

 

Judge Gay Benns

And then dad was like, oh, well, she’s turned against me. That’s why he doesn’t want to come to my house. And she’s this hateful woman, and this has always been her agenda. So, we appointed a lawyer for the child. We find out that the reason the child doesn’t want to go to dad’s house is because he’s got wonky Wi-Fi. Right. This is at the beginning of the Internet, and it was very important to him to maintain his social life, to have good access to the Wi-Fi. And I think he was probably played a game or two. I don’t know. But it had nothing to do, really with either parent at all. The most important thing to that child at that point was Wi-Fi, for whatever reason. Both parents had used that as an opportunity to attack the other. And really, we just needed to figure out how to get better Wi-Fi and then it would have been fine. But that was thousands of dollars later. Yeah, right. Of these nasty affidavits.

 

Jeannine Crofton

And I think it’s hard for people, once they do start to feel resentment and feel some adversarial sort of quality in the relationship, it’s hard for them to go back and really look at those most simple sorts of questions that they might be able to ask. And that’s where our neutral third party is. Perhaps a mediator comes in and says, well, what do you know? And what’s this about? And so sometimes that intervention in itself is really useful.

 

Judge Gay Benns

Exactly. And early rather before the affidavits are filed, not after. Right. But before we stand up in a witness stand and say what a terrible person the other parent is.

 

Jeannine Crofton

So, for those parties who do need to come before the court, I’m really interested to know what information is useful to you, because I think people don’t necessarily know how to prepare if they don’t have a lawyer. And sometimes they think more information is better. And from your perspective, what could you share with our listeners about what information is important?

 

Judge Gay Benns

Yeah, I used to think that people used to want to tell us too much. My experience now as a judge is that they don’t tell us enough. They have all this history and context. So, they come in with this shorthand, and we don’t know any of the background. I mean, when a file comes to us, I know almost nothing about it, particularly in Provincial Court, where our filings are so basic and bare bones. I know almost nothing about people. And then they’ll be on the witness stand. They’re halfway through the story, and I don’t know whether they live together. I don’t know if they have one kid or 21 kids. I don’t know anything about them. And particularly with self reps where they’re examining each other, it’s crazy. It’s important that we have some history and some context. But what we don’t need is all of the emotional stuff, which is very hard for parties to weed out all that out. Understandably. Right. I mean, for them it’s all tangled up together. If they can have some assistance from somebody, even just state the Facts, ma’am. Right. I think it’s some line from some movie.

 

Judge Gay Benns

We need the facts, first of all, and as little emotional stuff as possible would be perfect, but an impossible standard, I think.

 

 

Right.

 

Judge Gay Benns

We need all that background and then we need to know about your kids. Right. If we’re making decisions about your kids, we want to know about your kids. Right. Is one of them a gamer? Right. Is one of them really involved in extracurricular activities and out five nights a week doing that kind of stuff? Is one of them anxious and not wanting, not great at changes in their environment? All of those things we need to know because you’re asking us to make decisions about these little people that we don’t know.

 

Jeannine Crofton

Right. And it takes time to work through and acknowledge some of the emotion. I’m guessing in court it takes time to sort of help people be calm enough to get you the information that you need. And if they come in kind of having an idea about, okay, these are the facts that the court needs to know. This is how I’m going to tell them about my child and what their specific needs are. So, there’s an opportunity to prepare to some degree, and then you’ll ask them very specific questions if you need to. Is that right?

 

Judge Gay Benns

Yeah, that’s exactly right. Jeannine. It’s important that people do that homework, though, and recognize that in a hearing they’re going to be really nervous, they’re going to be afraid and they’re going to forget things. I mean, it’s just that’s natural, I’m sure. So if they can take the time beforehand to write things down, make sure that they’re telling me what they want me to know about themselves and their children to help me make those decisions, because it would be awful to walk away from court going, oh, I should have told her this or, oh, shoot, I forgot to tell her about an allergy or something or something, because you don’t get to come back. You’ve sort of got one chance at this to get in a hearing to get that information. Right. You don’t get to phone the court the next day and say, oh, can you tell Judge Benns this? Because I forgot to tell her that, no, that’s not going to happen. So, write it down and prepare.

 

Jeannine Crofton

And so, can people bring notes into court?

 

Judge Gay Benns

Oh, absolutely.

 

Jeannine Crofton

And look at them.

 

Judge Gay Benns

Absolutely. Yeah.

 

Jeannine Crofton

When you’ve seen things go very well, when you’ve seen families come in or parents come in and they’ve left with an outcome that they’re happy with or that it’s not so bad, what is the mindset of those litigants or those folks that come in where you think they have the best outcome.

 

Judge Gay Benns

They can put their kids first. Right. So that they can put their anger at the other party to the side and focus really on their kids. And sometimes it’s just time, right. Sometimes right after a breakup, it’s too soon to be to be even expecting people to be cooperative or collaborative or empathetic. Sometimes it’s just not possible. And then we’re doing an interim order. We’re doing an early order to put sort of a band aid on it and try and give parties some time to get their feet under them, let the dust settle, let the new reality set in about what their family is going to look like in different households, and then give them an opportunity to problem solve together before they have to come back and say, this interim order is not working or it is working and do a final order people need sometimes. And so, the difference between an early hearing where they’re so emotional and six months down the road where they’ve caught their breath and are able to reason with each other, it’s often night and day.

 

Jeannine Crofton

Right.

 

Judge Gay Benns

So, if we can just make sure that people understand that an interim order may be imperfect, we know that often it is imperfect that we’re just trying to give everybody some space and maybe get their evidence together so that we hear both sides of it. Sometimes we’re making interim orders hearing only one side of the story. So, we know it’s imperfect, but there has to be something in place to protect kids and make sure that they’re safe and their relationship with both parents is going to be okay. So that’s what we’re trying to do on an interim order with very often very emotional people.

 

Jeannine Crofton

I’m interested to know. So, in my practice, what I often see is that parents sometimes have a hard time separating their own needs from the needs of their children.

 

Judge Gay Benns

Yeah.

 

Jeannine Crofton

And so, if they feel like, well, this needs to happen. Then you kind of say, okay, well, what part of that is your need and what part of that is your child’s need? And I think when you talk about giving time to me, that gives them opportunity to sort of see that there are adults are allowed to have their own needs, and it’s difficult for adults, but kids often times have a different set of needs and they have a different experience of, say, the other parent or the circumstances. They see things a bit differently. So, when you talk about that extra time, it really does sort of make me think about those sorts of circumstances where if given time, they can sort of see things with a little bit more discernment.

 

Judge Gay Benns

Yeah. And sometimes that’s the opportunity for a therapeutic intervention. Right. So that people, if they’re struggling with that, don’t talk to your lawyer. Don’t talk to your support cast. You need to talk to somebody neutral. You need to talk to somebody who is able to assist you with that. Your lawyer is not able to assist you with that emotional piece of this, and a judge certainly isn’t. And sometimes your best friend and the people who are there supporting you are not the best either. Right. Because they are going to be very supportive and affirm your position or perspective when maybe there needs to be some pushback on that. So, I would encourage people if they’re feeling overwhelmed or lots of people need therapeutic support through a separation of divorce. It’s a really hard time and there’s lots of resources available in Alberta. So, investigate those resources. And it would never hurt to see a therapist or a counselor to put some ideas before them.

 

Jeannine Crofton

So, if I’m to ask you, as we’re kind of wrapping up here today to say, what advice might you give things maybe that we haven’t talked about yet. But is there some advice that you might give to people who anticipate coming into court or anticipate coming back into court? Is there anything that you would sort of say? This is what I’d like them to know.

 

Judge Gay Benns

I want people to prepare. Right. I’m sometimes worried how cavalier people are about it and how they’ll come into court expecting that the judge is going to just fix this. And we can’t do that. Of course, we can’t do that. We’re just trying to put some order in place for a family. But we can’t fix everything, and we can’t help them through the legal process. We can help them with process, but our job is to be neutral. So don’t come to court and expect the judge is going to do your case for you. We can’t do it. So do your homework. The law side of Alberta has a lawyer referral process, so you can speak to them and maybe they can assist you in finding a lawyer that will do a consultation for a reduced price or no cost at all. Look into that. Look into other legal services like the Calgary Legal Guidance Clinic that also is able to provide some advice. Read the legislation. If you’re your own lawyer, you’re going to have to be familiar with the law. So, if you’re bringing a matter for child support or parenting and you weren’t married, you’re under the family lock.

 

Judge Gay Benns

Have a look at that. The Divorce Act. If you were married, you’re going to have to read it through Google. Might be your friend. If you’re looking at resources around laws in Alberta, make sure you’re looking for resources that refer to that. Don’t come and tell me what the law in Montana is. Come tell me about what the law in Alberta is so you have to do all of that homework. Come watch court. Right? Don’t come to court for the first time when it’s your hearing date because you’ll have no idea what the process is. And again, you’re going to be nervous and scared. It’s much easier to take in information and notice how things are done if you’re not fretting about your own matter on that day. So come watch, see what goes on in the courtroom so that you’re a little bit familiar with it so that you’re prepared for what it looks like.

 

Jeannine Crofton

I like to say thank you so much. I don’t know that most people have a chance to just hear from a judge if they’re not in court or if they don’t know someone professionally. So, I’m just so pleased that you were able to join us. Judge Benns, thank you so much.

 

Judge Gay Benns

Oh, I’m so pleased to be with you and happy to talk about family law in Alberta. We need to do a better job of educating people.

 

Jeannine Crofton

That was Provincial Court Judge Gay Benns, and this is Family Law Matters. It’s not very often we hear from a judge about the work that they do. My conversation with Judge Benns illuminated some insights into her role, the levels of court and some resources to help keep you from needing to attend court. She also gave us some tips about how to prepare for attending court, especially if parties are representing themselves. She suggests that preparing for the case can include preparing emotionally for the experience and that using a psychological service can be of great assistance in these very important hearings. Finding both legal and therapeutic resources are an important part of the court process. Over the years, I have heard people recall their family court experiences and many with great detail. These moments are often filled with stress and worry and how a single judge’s decision has impacted their lives. It can be a concluding point to the past and the path given for the future of a family. As people have been separating during the pandemic, they are seeking a more authentic life, some of them by choice and some is a response to their partner’s decision.

 

Jeannine Crofton

Many spouses can reconcile the end of the marriage, but not the loss of full-time parenting. It can feel like one blow after another. I have heard many people talk aloud about the decision to stay or go and the risks to not being with their children as they always expected. It’s in these instances that people end up in court without a solution and forced to rely on a judge. Knowing Judge Benns so well, I feel like you’ll be in good hands. Judge Benns referred to a new resource for self-represented litigants. If you are interested, you can Google: Canadian Judicial Council Self Represented Litigants Family Law Handbook. That’s it for this edition of Family Law Matters. I’m Jeannine Crofton. Thanks for listening. Connect with us by emailing Family Law Matters at info@resolveology.com ask us your questions about family law issues and look for our blog articles to address your pressing questions. Check out the other work we do at resolvology.com. You can follow us on Twitter at @Resolvology_YYC.