Canadian Court: ‘Everything That’s Wrong With Family Courts’

October 22, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

It’s sad, pathetic really. The case referred to in this article is far from the most shocking of family court matters (CBC, 10/20/17). It’s nothing more than an appellate court ruling on a trial court’s decision to grant a father $10,000 in attorney’s fees charged against the mother’s lawyer. Her lawyer proved unnecessarily hard to get along with in what should have been a simple case.

The appeal court upheld the decision of a motion judge awarding $10,000 in costs against the wife’s former lawyer, finding that he had used court proceedings as a "form of leverage" to obtain concessions to which his client was not entitled — conduct the motion judge called "reprehensible."

The husband and wife had "substantial" assets and had settled all matters except for spousal support prior to divorcing.

"That proceeding should have been simple and straightforward," Chief Justice Richard Chartier wrote on behalf of the appeal court. "Instead, it dragged on pointlessly, causing needless court filings and delays as well as thousands of dollars of fees and costs."

So the lawyer behaved badly, protracted the litigation without need and cost Dad $10,000 in the process. The trial judge punished the lawyer and the appellate court affirmed the ruling. It’s a minor matter that was dealt with properly in the long run.

So what’s the problem?

On Tuesday, the appeal court released a decision in a divorce case it said highlighted "everything that is wrong with our family law court system."

But of course it does no such thing, and can’t. The case dealt solely with alimony. The parents had decided everything else between themselves. There was no dispute about child custody or parenting time, none about child support, none about visitation enforcement, none about paternity or paternity fraud, none about false allegations of abuse, none about parental alienation. So, by definition, the case barely touched on the many problems that crop up regularly in family courts. That the Court of Appeals believes the case touches on “everything that is wrong with our family law court system” is patently untrue.

Yes, it highlights the tendency of lawyers to exacerbate conflict in order to line their pockets and at everyone else’s – the litigants, the judge, court personnel, etc. – expense. But if that’s all the appellate justices believe to be wrong with the family law system, they’re woefully misinformed – astonishingly so.

And indeed, it seems they are exactly that.

"The system can often be adversarial and irreparably damaging to families," Justice Minister Heather Stefanson said in a news release. "The experience can be especially harmful for young children.

Yes, the system is certainly “adversarial and irreparably damaging to families,” but does Her Honor know why? If so, she gives no hint of it.

The system is adversarial and damaging to families because it tells husbands and wives loudly and clearly that when they enter family court, they become bitter enemies. They do so because the system assures them that one will emerge from the fray the victor and one the vanquished. One will be ordered the primary custodial parent and the other will go from being a full-time parent to an outsider looking in. The latter parent will have embraced the role of parent, probably years previously, and find his/her deepest sense of self in that role, but will find that sense of self cut off at the knees. The rate of suicide spikes among fathers who’ve been through the family court system and lost that sense of self.

So why wouldn’t parents fight tooth and nail? For fathers particularly, their sense of self-worth is on the line, their relationship with their children in jeopardy. Will Justice Minister Stefanson do the obvious to correct the system so parents needn’t dread the outcome of divorce? Will she and her government embrace the obvious idea of a presumption of shared parenting?

My guess – not a chance. Judge Chartier went on:

"In other cases, indeed most, parties should not be required to face the continuing trauma of significant expenses and protracted proceedings at an exceedingly vulnerable and emotionally charged period of their lives, namely marital and family breakdown. There has to be a better way."

There is a better way. A presumption of shared parenting would mean, as long as each parent is fit to do the job, neither need fear the loss of the children. Each can count on at least 35% of the parenting time, an amount any parent can live with. So what’s there to fight over? Few parents have much in the way of assets and those can usually be divided without too much rancor. It’s parenting time more than anything that creates conflict and it’s parenting time that a presumption of shared parenting addresses.

"In other cases, indeed most, parties should not be required to face the continuing trauma of significant expenses and protracted proceedings at an exceedingly vulnerable and emotionally charged period of their lives, namely marital and family breakdown. There has to be a better way."

"Finding ways to reform the family law system is an opportunity to look at a fundamental shift toward a system that focuses on collaboration and the best interests of families," Fineblit said.

Chartier’s “there has to be a better way” and Fineblit’s “finding ways to reform” have a wistful tone to them. If only there were a solution to this terrible problem, the divorce process would be so much better! And yet the solution to the problem has been right under our noses for many years now. Shared parenting is the well-known, easy and obvious solution to much that’s wrong with the system. And yet Chartier and Fineblit pretend that the matter is a great mystery.

All of which means, I predict, that whatever “solutions” the government comes up with won’t be solutions at all. They’ll be actions taken so the government can declare victory and retreat. Meanwhile, children will still lose their fathers, lawyers will still take conflict to the bank and people like the learned judge and the Minister can still pretend that the problems of family courts are inscrutable, forever needing more study and input from family lawyers.

How pathetic.




National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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