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David Stewart
David Stewart, Attorney
Category: Family Law
Satisfied Customers: 128
Experience:  Highly experienced attorney Commercial Law, Litigation, Intellectual Property Law, and Family Law
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In a recent case, the judge submitted facts and

Customer Question

In a recent case, the judge submitted facts and determinations in his order that weren't true. Basically, the judge said that I did something, went somewhere, and failed to do something that was required by a court order. But... I did not do that thing, did not go to that place and did not have an order requiring me to do such thing.So my question is, when does this become disciplinary? I have spent thousands of dollars to prove that what he said among other things, aren't true and were opposite on the record, to the appellate court. I want to make sure he can't hear my case again. What can I do?
Submitted: 1 month ago.
Category: Family Law
Expert:  David Stewart replied 1 month ago.

Hi Crystal: really sorry for the difficult time you are having with a judge. I need to get some additional information from you to give a full response. Have you been represented by counsel in the matter? Also, what is the Order the Judge prepared related to that contains the untrue facts and what is the Judge basing the facts on? Did someone give false testimony to the Judge that is being relied upon? Also, have you filed an objection to the Order explaining your position. A situation becomes disciplinary when/if you can prove the Judge is intentionally doing something wrong or drafting orders based on false information the Judge knows is false. It may be easier to talk through the situation by phone confidentially so I am going to offer that as a proposal if you would prefer it and believe that would help. Thanks, David

Customer: replied 1 month ago.
I was represented by when I appealed a magistrate's decision to begin with, but have since ran out of money to continue with council. So in Judge's review of the case, the final order presented that [I] ..."should have left my children with their father, and gone to Toronto alone as the order stated."But I never went to Toronto. That wasn't even discussed in the trail at all. Further, I do not have a court order that ever requires me to leave my kids with their bio-dad. We don't have the first right of refusal clause. These things were not mentioned in the appeal or the during trial. Just something he inserted! I am appealing that case in a higher court now.I have filed a disciplinary action against this judge once before and was denied, but I know that this man is doing things wrong, I just have to figure out how to present it so the Supreme Court understands. And my point in made within the scope of what they will investigate.Winning the appeal would only correct the error, but not prevent it from happening to me or anyone else again.
Expert:  David Stewart replied 1 month ago.

Thanks for the additional information. Based on what you are saying you likely have a judge that is somewhat lazy and not really delving into the facts well. In order to get the Judge disciplined, you will need to prove (or have very good supporting information) in the disciplinary complaint to get them to do anything showing that the Judge is relying on false information and know it. You mention that certain things were or were not mentioned at trial or on appeal, etc... and those are more or less procedural issues that can be taken up on a appeal of an order you believe is incorrect. However, those are not disciplinary matters and you will be wasting your time pursuing those issues outside an appeal. You need to show the judge knowingly and intentionally entered an order with false statements about you. For instance, if the Judge says you went to Toronto based on something he heard your exspouse say that is not an intentionally made false statement. If it is not in the record through testimony or otherwise it is a matter to be brought up on appeal, but would never get the Judge disiplined.

The way you get this out from under the Judge if it goes back there is to ask the Judge to recuse from the case due to bias. You have now filed a disciplinary action against the Judge so you are very unlikely to get a fair hearing in the future before this judge. Recusals are fairly common and your case will simply get transferred to another judge if there are further matters to be decided.

I hope this helps! David

Customer: replied 1 month ago.
Thank you. I should have requested a recusal sooner.
Expert:  David Stewart replied 1 month ago.

Possibly, but the Judges see and hear so many cases and my guess is this one has gotten complacent and just ruled based on what he/she thought at the time and put as little effort in as possible. You did not have a good basis for the recusal until after you filed the disciplinary action and I am not sure on timing with that, but one additional point I have for you is that if this order came out after you filed the disciplinary matter that is decent evidence in my opinion that may at least get you and investigation. It depends on time but if you filed the disciplinary matter and then in fairly short time this order came out containing false information about you that is something a disciplinary panel would be interested in hearing about. Good luck with everything. David

Customer: replied 1 month ago.
That is the timing, I filed the disciplinary action and the judge stalled the ruling on the objections for MONTHS. The transcript took almost 7 months to complete, and judge let the interim order expire but then wouldn't vacate it. He lied in the interim orders too. Think I should wait for the appeal ruling before I file the disciplinary action again?
Expert:  David Stewart replied 1 month ago.

I do not think you should wait for the appeal. I suggest refiling now and very clearly explain early in the document exactly what happened. The timing of all of this is your best argument and if the panel sees that you may well get an investugation beyond a simple cursory review. Even if you loose the Judge will at least think twice before doing this again and this gets the judge on the panel's radar so to speak.

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