Canadian Family Law Experts: Rearranging Deck Chairs on the Titanic

It’s no secret that the Canadian family law system is broken.  Countless articles have been written about how expensive getting a divorce is, how time consuming and how unfair to fathers and children.  Fathers in Canada are even less likely to get primary custody of their children than they are in the U.S.  Here the paternal custody rate is a bit over 17%; in Canada it’s more like 10%. It’s gotten so bad that Ontario’s Chief Appellate Judge Warren Winkler, in a speech last October said,

“I think the time has come for a fresh conceptual approach to resolution of family disputes in Ontario.”

Or, as family lawyer and president of Ontario’s Collaborative Law Association Judith Huddart said of the system of family law,

“It really isn’t working, period. And it hasn’t been working for some time.”

Family lawyer Michael Cochrane likens the system to “pouring gasoline on a fire.” So, with the understanding of family courts as dysfunctional being pretty near universal, it’s no surprise that  government officials are addressing the crisis by … rearranging the deck chairs on the Titanic. As I commented a few weeks ago, Winkler spoke in broad terms about sweeping reforms to a family court system desperately in need of them.  But when it comes to specifics, he showed only the vaguest awareness of what’s wrong. And so it seems do the rest of those with the authority to actually do something constructive about the mess that is family law in Canada.  This article gives yet more good examples (CTV, 3/16/11). There are two deck chairs they’d like to place in different locations.  The first has to do with unifying family courts so that one judge hears all of an individual case.  I think that’s a good idea.  It’ll undoubtedly afford a better view of the scenic North Atlantic while the ship goes down. The second is to establish a single court to hear family violence claims.  The existing situation has family courts hearing family matters and criminal courts hearing DV claims.  The new proposal would establish another court to hear both the family and the criminal matter, except that sometimes it wouldn’t.  I’ll let you figure it out because I can’t.

In the new integrated domestic violence court one judge will manage both the family and criminal cases, though if a trial is needed it will be heard by a different judge. Appropriate cases will be moved to the new court on a voluntary basis and will receive help from a community resource co-ordinator.

In short, governmental officials realize that there are serious problems and make proposals that have little if anything to do with solving them. Meanwhile, Huddart and Cochrane sound like they’ve got some very sane, serviceable ideas, but even they seem to miss the obvious.  Huddart’s idea of mandating mediation or collaboration has always been a good one, although, as I’ve said before, without changing underlying law and judicial practice, they won’t do much to change outcomes in custody cases.  As long as the parties know that the judge will award primary custody to the mother and visitation every other weekend to the dad, why would mothers agree to anything else? Cochrane, a 30-year veteran of family law, is on to something.  He rightly points out that the adversarial system makes divorce and custody cases worse, not better.  Second, he’s correct in saying that, in divorce, there are rarely any thorny issues of law that need the attention of a judge or attorney.  The simple truth is that most of the issues have nothing to do with the law. So Cochrane’s solution is to route divorce and custody matters to a tribunal that would treat cases more like labor-management relations than like war.

“They should be off in a separate process more akin to labour relations.” The vast majority of family law cases don’t involve complicated legal issues, Cochrane said. They involve emotional problems, financial planning problems and safety concerns, he said, and a tribunal could better deal with them.

It would also be more cost effective in the long run, Cochrane argues, because right now some judges earning $240,000 a year are solving problems such as if access to kids on a long weekend includes the Monday.

That’s a lot like what I’ve been arguing for lo these many years.  I think family cases should be sent to special masters to decide the issues.  Those could be paid less than judges and therefore there could be more of them, so the whole process would be expedited.  Likewise, people should be discouraged from hiring attorneys.  They add cost and tend to be the very thing that pours gasoline on the already inflamed emotions of the divorcing parents. But of course, the sine qua non of family court reform is equal parenting.  Without equal parenting laws, tribunals or special masters will tend to order what judges do – primary custody to the mother and visitation to the father.  That’s been shown countless times to be detrimental to all concerned, but they keep doing it.  Year after year, the figures on primary and secondary custody are the same; year after year, children experience their parent’s divorce as the loss of their father; year after year the system that we know is bad for children marginalizes fathers in their lives. And guess what.  There’s a bill pending before the Canadian Parliament, C-422, that would create a presumption of equally shared parenting post-divorce.  It’s backed by every political party in Canada including the Greens. Strangely enough, it’s mentioned nowhere in the CTV article; Ontario’s Attorney General Chris Bentley never mentions it; neither does Winkler, Huddart or Cochrane.  In fact, reading the article or listening to Winkler’s speech, you’d never guess that there’s a bill that, if passed, would do more than anything to solve the problems of family law and those of children of divorce. Hey, they’ve got furniture to rearrange. Thanks to Paulette for the heads-up.

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