"Publicity is the very sole of justice…and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial." [Scott v. Scott, 1913 AC 417]
Engaging the court to obtain judicial relief often comes at a heavy price in lost privacy, even for the successful plaintiff.
The recent case of Martin Brodeur, star goaltender for the New Jersey Devils of the National Hockey League, exemplifies the issues.
Mr. Brodeur is an affable, highly-skilled professional athlete, adored by New Jersey and Canadian hockey fans. Most experts consider him to be the best ice hockey goaltender in the world.
But because his wife sued him for divorce, child and spousal support, intimate details about Mr. Brodeur’s personal life have been firmly disclosed first by the trial division of the Superior Court of New Jersey, and again by that Court’s appeal division on July 13, 2007.
In 2002, after a seven-year marriage, he and his then-wife Melanie Dubois, gave birth to a daughter, their fourth. Ms Dubois’ brother and sister-in-law came to live with them to help out with the children. The rest of the sordid tale is set out the appeal court reasons.
"The Plaintiff (Ms Dubois) soon began to suspect that her husband was having an affair with her brother's wife. In the summer of 2002, she confronted defendant (Mr. Brodeur) about her suspicions; both defendant and her sister-in-law denied having an affair, and plaintiff had no reason to disbelieve them. She allowed her brother and sister-in-law to remain living with them. On December 24, 2002, however, defendant admitted to having an adulterous relationship with his sister-in-law. When, on December 28, 2002, plaintiff learned that the affair was continuing, she removed defendant's belongings from the marital home and asked him to leave. He stayed in hotels and then an apartment for the first few months of 2003."
A full history of Mr. Brodeur’s relationship with Ms Dubois is set out in the judgment as are extensive details about his professional sports contractual relationships, details that are usually jealously protected by professional athletes or their agents.
An informal and self-serving code amongst sports journalists, is to not report the personal problems of the athletes they are covering. To do so, puts the journalist on a career-ending blacklist. Finally, a Quebec crime tabloid exposed his alleged infidelity.
Mr. Brodeur had originally suffered a 12-day family law trial; an ordeal of itself. But the New Jersey trial judge, length of the marriage notwithstanding, did not set the clock on spousal support and stated it to be indefinite. Hence, Mr. Brodeur’s appeal (on which he was successful).
From the appellate Court’s judgment:
- "When (Ms Dubois) turned seventeen, her parents permitted her to share a room with (Mr. Brodeur) in their house."
- On several occasions, Ms Dubois, in following her then-husband along his hockey career, was not in the USA legally.
- "In August 1994, the Plaintiff (Ms. Dubois) miscarried";
- "After the separation, ... because she was uncertain about her future, she immediately withdrew $300,000 from their joint account and deposited the money into an account in her own name. Plaintiff admitted that she spent some of this money on plastic surgeries for herself";
- Mr. Brodeur’s child support is now $11,000 a month and his spousal support, $42,000 (all US dollars).
- Ms Dubois, who spent $442,210 in legal fees (her solicitor of record at the appeal was found to have demonstrated "bad faith and unreasonableness" during the course of the litigation.
- Ms Dubois’ share of the family assets totalled $6.8-million USD.
Mr. Brodeur, a private man but also a public persona, is stated as saying in 2003 that: "I made a mistake and now I have to live with it."
The courts are not insensitive to the necessary evil of privacy disclosure within their reasons for judgment, but sometimes brutally personal facts about the parties to the litigation can leave a litigant dizzy with regret. In commercial or "big money" cases, this is not as significant an issue in the courts will often tell the litigants that if they ask for Her Majesty's justice, or that of the United States, they have to be prepared for publication of reasons. But in cases involving people and their troubles, the public disclosure by judgment can be the most painful experience of all, and leave the litigant feeling empty and alone as it must of affected Mr. Brodeur (pictured).
For the law, the publication of reasons is one of the most important ways to educate the public. Anybody reading the Brodeur case, for example, would become cognizant of the proportionality of family support and the concept of limited duration of spousal support for a seven-year marriage.
Some Canadian jurisdictions, particularly Québec, do not publish family law judgments using full names, especially when a child is referred to. Instead, initials are used. This, of course, is very problematic for legal researchers or case catalogers.
Going one step further, from 2002 to 2005, the Canadian Province of British Columbia, the Courts did not web-publish family decisions unless the judge considered the case to have precedential value.
This experiment immediately restricted access to family law judgments, allowing only lawyers, judges or the parties themselves access. This, of course, was a short-sighted (and, thankfully, short-lasting) policy and has since been reversed as it gave a significant advantage to legal professionals only in terms of finding and arguing the most recent case law.
The British Columbia courts have flip-flopped on this issue. For example, if one visits the website http://www.courts.gov.bc.ca/ca/2006/ca-family.htm, purports to be a comprehensive list of family law decisions of the Supreme Court of British Columbia in 2006, one will see the use of full surnames.
All, of little consolation to Mr. Brodeur who, because of the public disclosure of his personal life, must suffer the indignities that go with it. In a 2003 playoff game, a hockey fan held up a sign:
"Tickets to a Stanley Cup playoff game: $95. Alimony demanded from your wife: $9 million. Sex with your sister-in-law: Priceless."
Public disclosure of private details of a person's life is devastating. It is, in and of itself, a difficult and traumatic experience especially when it involves a transgression of legal or moral standards; even more so when it involves family.
That fact falls on deaf ears in the courts.
If you require and ask for powerful assistance of a court of law, you must be prepared to pay the piper; to allow your case to be published so that those who come after you might better know the law and because of that knowledge, may better plan their lives in accordance with it.
As for Martin Brodeur, the ordeal has been an opportunity for him to demonstrate notable personal resilience as since and during the court hearings and judicial but public disclosures, his game has not suffered.
In the last season of National Hockey League play, he set a record for the most number of wins in one season, while winning the league's trophy for top goaltender.
But contrary to most litigants who, win or lose, or financially devastated by legal fees and litigation stress, Mr. Brodeur at least has access to fan adulation to keep his spirits up, and the financial means to dilute the pain of publicity, something 17,000 screaming fans and an $8-million annual salary will do for you.
- London Free Press, April 30, 2003
- The Sporting News, May 10, 2003
- The Star-Ledger, July 14, 2007
- Dubois v Brodeur, Superior Court of New Jersey, Appellate Division, A-1665-05T11665-05T1