Ontario Justice Shows Little Understanding of Family Court Problems

It was – how long ago?  A year and a half?  Two years?  I was watching a video of a panel discussion among Canadian attorneys and mental health professionals involved in family courts.  One of the participants was a family judge and one of the topics of the discussion was non-enforcement of visitation on behalf of non-custodial parents, about 90% of whom are fathers in Canada.

Although I can’t quote from memory, the judge resisted enforcing visitation orders, and for a remarkable reason.  He said that the children would likely not appreciate a father who had their mother jailed for failing to permit visitation. 

It’s a good thing I wasn’t present because I’d have been screaming.  Here was a jurist of long-standing who, with a perfectly straight face and sober demeanor, was pretending that the only remedy available to him, when faced with a mother keeping a child from a father, is jail.

Needless to say, that’s just not true.  In fact, there are many possible ways in which a family judge can enforce visitation orders short of jailing the miscreant.  Taxing costs against the parent is one as is an award of the other side’s attorneys fees.  So is a change in custody and an increase in visitation.  The parent can be made to attend counselling sessions and the like.

Of course that judge knew all this perfectly well, but chose to hide behind a transparent pretext – that in some way, he had only the power of jail with which to enforce visitation orders.  Australian academic John Hirst revealed an identical mindset in his country in his essay “Kangaroo Court: Family Law in Australia.”  There he incredulously asked “why this talk of gaol?”

And then he answered his question.  This “talk of gaol” is what we in the United States call a red herring, i.e. a fake issue used as a stand-in for the real one.  In Australia as in Canada, the talk of jail is aimed at making listeners overlook the fact that judges have many options at their disposal with which to enforce visitation orders which they also don’t use.  The predictable result is that custodial parents who wish to ignore those orders with impunity and fathers are lost to children.

All this came to mind when I read this speechby Ontario Chief Justice Warren K. Winkler delivered on November 19, 2010.

In it, Justice Winkler says that, from talking to family law practitioners across the province, he has concluded that the system of family law is in crisis.   Few would disagree with him there, least of all me.

Of what does this crisis consist according to the judge?  Mostly it consists of delays, costs and the adversarial nature of the process of family dissolution.  In short, there are too many cases, they’re too acrimonious and they take too long.  That means people run out of money and they then have to handle their own cases which in turn takes courts’ time and resources.

All of that is perfectly true and Winkler’s solutions are perfectly sound.  He recommends mandatory mediation before any proceeding can be filed in court.  He also says that special judges should be appointed to deal with the bulk of matters that simply don’t need a family court judge to attend to.  I’ve called for that myself.

So, if Canadians would just do what Justice Winkler says, family dissolution would be quick, easy, inexpensive and relatively free of acrimony, right?

Hmm.  To me, it looks like more “talk of gaol.”  It seems that the judge wants us to look at his preferred issues and ignore others that, come to think of it, wouldn’t be affected in the least by his proposed remedies.

While Justice Winkler points to some of the problems of family courts, he assiduously avoids mention of the facts that (a) fathers (90%) don’t get custody, (b) even when they have a visitation order, it’s hard to enforce it, (c) lack of enforcement means marginalization in his child’s life, which means children grow up without fathers, (d) all of the previous has been demonstrated by pan-Canadian data to be contrary to the best interests of children, (e) there is no clear notion on the part of Canadian judges what the best interests of children actually entail even though there is a fair amount of social science on that topic, (f) equally shared parenting is, in most cases more likely to promote child well-being than the current system of primary custodian/visitor and (g) there is a bill before the Canadian Parliament that would establish the presumption of equally shared parenting in law.

It’s easy to pretend you have the solution to the problems of the Canadian family court system if you simply ignore all the major ones.  That’s Winkler’s approach.  Like many a bureaucrat, the problems he sees are administrative – the process is slow and expensive.  That Canada could have the fastest cheapest family courts the world ’round that would still perpetrate the most outrageous injustices seems never to have occurred to the man.  

Children’s need for a healthy, vital relationship with their fathers post-divorce has apparently not blipped on Winkler’s radar screen.  Neither, apparently, has the concept that family courts play a role in child well-being or the lack thereof.

Does he truly not know these simple, obvious things?  Or, like Hirst’s “talk of gaol,” is the whole speech just designed to divert attention from the real problems of family courts in Canada.  My guess is the latter, but whatever the case, Justice Winkler should know one thing: fathers and fathers’ rights aren’t going to be fobbed off by an act of judicial legerdemain.

So, deal with it now or deal with it later.  Either way, Canadian law will change to more effectively honor fathers and keep them in the lives of their children.

Thanks to Paulette for the heads-up.

Leave a Reply

Your email address will not be published. Required fields are marked *