Ontario Chief Justice Misses Boat on Family Court Reform

The disconnect between family judges and the people whose cases they adjudicate grows more apparent by the day.
The disconnect between family judges and the people whose cases they adjudicate grows more apparent by the day.  Here’s one example (Toronto Star, 9/13/11).

I’ve written about this before, but since Judge Winkler is still at it, so am I.  Warren Winkler is the chief justice of the Ontario provincial family court.  So you’d think he’d know something about the horrifying state of family courts in Ontario and the rest of Canada.  And he does know something – one thing.

What he knows and what he’s harped on for months if not years is that the courts are “too slow, too complex, too adversarial, and above all, too costly.”  Fair enough.  He’s right about all of that and right to try to fix it.  And his fix may in fact do some good if put into practice.

Winkler wants to have “unified” courts throughout the province, which is a good idea.  As it stands now, litigants get bounced from one judge to another depending on what issue is being heard.  The result is that one judge often doesn’t know what another knows because the evidence produced in one court isn’t the same as the evidence in another court.

To say the least, that’s no way to run a court system.

But please.  Does Winkler really think that’s the only thing wrong with family courts?  Apparently so.  When he sounds the clarion call that the system “cries out for reform,” people might be excused for expecting him to address real problems of basic justice.  But no.  I’m all for speeding up the process and making it cost less, but Winkler betrays not the slightest hint that he’s aware of the far greater problems.

Those problems have been described time and again on this site and countless other places.  They include blatant, overwhelming sexism in custody orders, lack of due process of law in claims of domestic and child abuse, draconian measures to enforce child support coupled with routine non-enforcement of visitation for dads.

In the process, children lose almost all contact with their fathers.  That harms their financial, emotional and psychological well-being.  Winkler’s ideas might improve matters for lawyers, judges and to some extent litigants.  They’d do nothing to help children with one of the hardest experiences of their lives.

Fathers and children are gravely dis-served by the Canadian system of child custody.  As in so many places outside Canada, courts routinely opt for primary or sole maternal custody.  Is Winkler aware that Canadian economist Paul Millar has analyzed the massive data from Statistics Canada and found that no evidence exists that maternal custody is in children’s best interests?  Is he aware of the massive body of sociology and psychology promoting shared parenting?

He’s the province’s chief family court justice, so he should know some things about what science says actually promotes child well-being.  But if he does, he’s not letting on about it.  And his call for reform includes nothing about keeping fathers and mothers both actively involved in children’s lives post-divorce. 

Winkler just wants to speed the process up, but survey after survey shows that Canadians overwhelmingly want shared parenting to be the default position of family law.  Every major political party in the country including the Greens is on board with the concept, but Winkler’s having none of it.

By the way, read the comments to the article linked to.  Plenty of the commenters understand what’s really wrong with family courts, and those comments, when juxtaposed with the Winkler’s remarks, tell a larger tale.

It is that, as I recently said in a different context, that everyday people seem to understand the problems of the family courts in custody cases far better than do the judges, lawyers and legislators whose job it is to know what’s good for children and act accordingly.

It’s a fascinating thing that disconnect between elites and the rest of us, and there’s got to be a reason for it.  I suspect there are several working together.  One is a hide-bound traditional way of seeing mothers and fathers that simply can’t accept the idea that fathers can be as good parents as mothers.

The second is fealty to an ideology that holds males in whatever role to be suspect.  According to that ideology, the family is little more than the seat of society’s oppression of women with fathers as  the instrument of that oppression.  For adherents, dissolution of the family has always been an end in itself.  For them, mothers keep the children, fathers pay and when Mom’s at work, there’s state-subsidized daycare.  That ideology is now and has always been utterly at odds with facts, but manages to hang on despite being wrong in every particular.

Most importantly, there’s money.  The family law system is, among other things, an enormous cash cow for lawyers and assorted “experts” who make their daily bread advising courts to give custody to mothers.  The simple truth is that child custody should never have been the brief of lawyers in an adversarial system in the first place.  That system exacerbates conflict because lawyers make more money off of hotly contested cases than off of amicably resolved ones.

Needless to say, Justice Winkler will never argue for taking custody cases out of the judicial arena altogether.  He might lose his job and we can’t have that now can we.

Much of what ails the Canadian family court system would be cured by shared parenting as the default position in custody matters.  Canadians want it and there’s a bill before the parliament that would do just that.  Until that bill, or one like it, becomes law, all the “unified” courts in the world won’t fix the system that Winkler rightly says “cries out for reform.”

Thanks to the excellent Paulette for the heads-up.

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