NORM
CHRISTIE returned home from work one day in January two years ago, tired
but eager to cook hamburgers for his seven-year-old twins' birthday
party. Instead of the standard welcome - his three children charging at
him, squealing in excitement Christie got the shock of his life.
"My wife and kids were gone," he painfully recalls. "As
many of the house contents as she could fit in a van were gone too. A
note was left saying to call a specific lawyer."
So
began the Christie family's perilous journey through Ottawa's
family-justice system, a journey still incomplete and one that will
almost certainly not end in justice. Users of local family courts -
including many lawyers and up to ten per cent of the 2,000 residents who
commence divorce proceedings annually - complain vociferously that the
system destroys lives. "Our experience has been catastrophic,"
says Christie, whose children went almost five months without seeing him
after his wife completely denied access. "I have no respect for
it"
It is not hard to understand why Christie,
a First World War historian, feels the courts have let him down so
badly. There is a strong argument that an anti-male gender bias drives
the system despite dramatic changes in society - resulting, for example,
in more fathers seeking custody of their children. To make matters
worse, problems plague every level and corner of Ottawa's family-law
regime, from the glassed-in judges' chambers on the fifth floor of the
Ottawa Courthouse at 161 Elgin, down to the inept lawyers who mishandle
cases, right into the cold hearts of angry, intransigent clients who
exploit their own helpless children to get revenge on their exes. And
instead of easing the agony, the growing number of well intentioned
but largely unskilled mediators, lawyers and psychologists - who try
to play referee between couples groping for a settlement - often make
things worse.
Sound
hopeless? It probably is, but governments persist in trying to repair
the mess anyway. The latest and most anxiously awaited fix is the
long-promised Unified Family Court (UFC), tentatively scheduled to be up
and running before 2000 in Ottawa. Five UFCs
are already functioning in London, Kingston, Barrie, Napanee and
Hamilton. Hamilton's UFC, the model, was established in 1977.
One
feature of a UFC is that it will allow its judges to rule on property
matters - something they are forbidden to do under the Canadian
constitution. That has meant that many divorcing couples have had to go
before two separate courts to settle all matters - one court that has
jurisdiction over support, custody and some other issues and one that
can rule on all divorce issues, including property. The two-court system
has largely represented extra paperwork, ceremonial gowning - and
additional billable hours. In fact, except for the cost, most clients
have not been unduly burdened by the dual system, if they even
realized it existed. Both courts have been housed in the same building
since they moved into the new courthouse in 1987. All of which begs the
question: Why would anyone care whether the judges holding their lives
in balance are federally or provincially appointed?
Still,
there are arguments in favour of the UFC system. Ottawa's UFC, like the
ones already established elsewhere, will presumably comprise an
assortment of efficiencies: one judge for each file, psychological
assessment to determine parental fitness and children's wishes, and
counselling referrals, among other things. As well, it may oblige
couples to undergo mediation - that is, to discuss and try to resolve
their differences and demands before they head for court. For these
reasons, although there is no chance the UFC system will make divorce an
enjoyable experience, it should make the process less expensive and
drawn out
Sure,
it all sounds good on paper, but the question remains: Will a UFC
finally start meting out true justice to Ottawa's disintegrating
families? The answer depends on whom you ask.
"It's
long overdue," says University of Ottawa family-law professor
Julien Payne, who, as Canada's UFC architect, wrote a 900-page general
blueprint for the system in 1973. Although the establishment of UFCS has
been stymied by inevitable power struggles between the provinces and the
federal government, Payne has been gratified over the past two decades
to watch them spring up in one form or another across the country.
"It eliminates fragmentation. It reduces costs and time," he
says. "My perception is that UFCs have
been popular wherever they've been established."
Charles Farrauto, president of Kids Need
Both Parents, doesn't see things that way. "The UFC is absolutely
no different [from] any other court. Maybe you can get into court
quicker, but it doesn't speed you along once you're in," he says.
As a user in and out of Hamilton's UFC almost forty times in the past
nine years, Farrauto maintains that the promised one-judge-per-case
scenario just doesn't wash in practice. "Can I say this? That's
bullshit," he says, grumbling that he has been before just about
every judge and has spent more than $100,000 since he first went to
court.
His
dramatic story began in 1990. "I came home one day and realized my
key didn't work in the door. There was a note [from my common-law wife]
saying I'd never see my daughter again. It tore my heart out."
Between then and now, he has endured it all: allegations of sexual and
physical abuse (which a judge finally ruled were false in October 1995),
five months straight without seeing his daughter and the loss of
everything he owned. "I'm on welfare, but I still have to go back
to court again this year."
Veterans
of Ottawa family courts aren't expecting any miracles either. "We
need a Unified Family Court like we need another arsehole," says
Brett Peters, president and founding member of FARE (Fathers After
Rights Equalization), which currently has 300 Ontario members. Peters'
wife got up one morning in 1995, "kissed me good-bye, took the baby
and went into a shelter in Carleton Place. Days later, she signed a
seven-page affidavit saying I raped her, I beat her, I stole her money
and confined her in closets. Because of this, I now have only supervised
visits with my daughter once a week." Peters, outspoken and
unapologetically rude, puts no faith in a UFC: "I don't care what
they call the system, whether it's the Family United Court, the Family
United Way Court or the Family Universe Court. It's going to be the same
thing with a different name. Before anything changes, you have to get
rid of the arrogant, deadbeat judges."
The
majority of Ottawa's senior family lawyers quietly agree that most
judges are not fully competent in family law. They also agree that
anti-male bias on the bench is Ottawa's worst kept secret. But they're
quick to defend the same judges, pointing out that those on the bench
are only human, and seriously overworked.
"It's
probably fair to say there's a gender bias in, [for example], custody
matters," says Carol Cochrane of the law firm Low Murchison.
"I think there's a feeling among many judges that the tender-years
doctrine is still applicable to preschool kids. The sentiment is they
are better off with Mom. I think this dismisses the very big change that
men have made. It's now standard fare to have a two-income, two-career
household and a nurturing dad. I think that's been lost on the
judges."
Norm
Christie, who so far has spent $35,000 on legal fees, says he knows
first hand how judges tend to treat men in divorce cases. "Our
first judge was a complete idiot. He didn't read the material properly.
All he said was I would have to have a [psychological] assessment and
pay support. He made an error in his ruling based on the [federal
child-support] guidelines. It cost me $2,000 to go back to court to
correct it."
Then
there's the story of Nicole Sly, who says she has also experienced
judicial anti-male bias. She has been in and out of a Belleville court
thirty times in thirty-six months helping her common-law husband, who
looks after his three children almost full time. "We were invited
into one judge's chambers during a hearing. He took our forty-two
pages of evidence proving [my partner's] wife was a liar and was using
the police to harass us. The judge simply turned them facedown. He said,
'I don't care. What are you doing here?' " Sly, whose fiancé has
been forced to declare bankruptcy, knows the judge would have reacted
differently if the genders had been reversed. "My partner would
never have seen his kids."
It
is hard to imagine judges changing their entrenched perceptions just
because of an appointment to a UFC. Moreover, it's unlikely their
workload will decrease, says Leonard Levencrown, a senior family lawyer
with MacKinnon & Phillips. "It depends on the resources [the
government] gives the court," he says. But he is not optimistic,
especially since there may be a mandatory mediation component.
"There are certain situations where the parties will never mediate.
So it will just cause more delays and more paperwork. I happen to think
it's going to be even more paper-intensive than it already is." As
for the idea that an exclusive judge assigned to each file will ease the
agony of divorce, "I don't buy it," he says. "How much do
you think a judge can remember when he hears literally hundreds of
cases?"
If
traditionalist, overworked judges aren't causing major problems for
family law, the unskilled lawyers plying their trade in Ottawa certainly
are, says family-law specialist Gary Steinberg, who echoes virtually
every experienced lawyer in the field. Dangerously clogging the system,
as well as driving the cost of a single divorce as high as $120,000 for
an average-income family, unskilled family-law solicitors are easy to
explain: supply and demand. In the past half-dozen years, the real
estate market plunged (before picking up again in the past eighteen
months) and motor vehicle negligence work dried up with the introduction
of no-fault drivers insurance in 1994. Legal-aid cutbacks two years ago
also made criminal law less attractive. That left family law.
Nicole
Sly has managed to stay with her first lawyer, but Norm Christie is on
his second. (He shudders when he recalls how his first lawyer consented
- without permission - to a restraining order that allowed him only
supervised visits, visits that eventually petered out entirely.) For
his part, Brett Peters has lost count of the lawyers he has hired and,
in fact, has given upon them altogether. "I fired them all,"
he says. "They're only after one thing. Money." He still has a
solicitor of record, but only as a formality.
One
twenty-three-year veteran of Ottawa's family-law scene has a free piece
of advice to anyone contemplating divorce. "Hire the best lawyer in
town, and make sure your spouse hires the second best," says Hunter
Phillips, who charges $250 an hour. He insists that borrowing the
money to retain an expert is better than paying $100
an hour for an inexperienced
solicitor and maintains that ninety-five per cent of his clients, like
the majority of divorce parties generally, settle out of court through
either negotiation or mediation.
Many
inexperienced lawyers, Phillips argues, "don't know what the courts
are awarding. And they can't necessarily recognize a reasonable
settlement offer when they receive one. Or they may not have the confidence
to make an offer themselves. The only safe way for them to handle a case
is to let a judge decide."
There
is no reason to believe a UFC will alleviate this problem, given
that the new court can't
reduce the number of divorces or, consequently, the need for lawyers.
The only plus, if it is one, is that inept lawyers will be pulled along
by judges who are versed, at least in theory, on the intricacies of
family law. "[UFC] judges are essentially specialists, so even if
the lawyer is not, the judge will still be able to make a sensible
judgment," argues Payne.
There
is also no reason to believe that the number of court-ordered
psychological assessments
will decline when the UFC
comes to town.
In Ottawa's family-law quagmire, conducting court-ordered assessments
has become something of a cottage industry. At least a dozen agencies
virtually survive by offering the service. The busiest of these until
five years ago - the Royal Ottawa Hospital's Family Court Clinic - was
doing about 100 custody and access assessments annually. Today, because
of cutbacks, the clinic handles only about twenty-five such cases a
year. So there is no shortage of work for other psychiatrists,
psychologists and social workers who do them. In part, that's because of
the exploding number of allegations of abuse, almost always made in
affidavits by a wife against her husband.
"In
the past few years, there has
been an increase in the number
of allegations of abuse that are unsubstantiated. There is a strong
suspicion that many of these are false allegations," says David
Fischman, a psychologist in private practice who does about ten
court-ordered assessments a year. "The allegations are so easy to
make. And once a man is accused of abuse, it sticks and doesn't fall
off." Men are now accepted, at least theoretically, as being
capable of raising their children. "I believe this has increased
the motivation to make false allegations," says Fischman.
"Some women may use it as a last resort."
Nicole
Sly, Brett Peters and Norm Christie have all been subjected to
court-ordered assessments. Sly says hers went well, but the court
ignored the final report. Peters says he was declared non-abusive, but
he can't afford to return to court to try to increase the very limited,
supervised access his daughter has to him. Christie's assessment - which
cost him $5,000 - helped him win a couple of small, halting victories,
including regular, unsupervised access. He says the report cleared him
of abuse allegations and found that his wife suffers from depression.
But to put the assessment findings to good use, Christie has to pay his
lawyer and take his chances before a judge again. What's more, just
because an assessment is ordered by the court does not guarantee it will
be done professionally. One reputable assessor, who asked not to be identified,
suggests that there are some women assessors in Ottawa who are playing
out their own marital conflicts in their custody work.
Perhaps
the most significant factor in a vicious divorce, and the most
insidious, is the personality of one or both parties, a problem the UFC
will never be able to handle. "Don't expect the court to deal with
pathology," says UFC architect Payne. "If you have a pathological
situation, it doesn't really matter who the judge or the lawyers are.
You cannot stamp out a pathology. It always plays itself out at great
cost. Most [divorce arrangements] do not find their way into court. They
are processed by agreement. [But] those that do go to court often have
an emotional dynamic to them. Some people cannot face the end of their
marriage. They vent their hostility compliments of the litigation
process."
And
it is a mistake to believe that it takes two people to force a case
through the courts. "No, it sure doesn't," says Charles
Farrauto. "It only takes one intransigent, unreasonable person.
If one party is hell-bent on making misery for everyone, there's a
system to support that. In fact, the system legitimizes the behaviour
and bends over backwards to protect it."
For
family lawyer Gary Steinberg, it all got to be too much. "I made a
promise to my wife two years ago that I would never litigate a custody
case again, and I haven't. I just can't stand the pain it causes kids.
You can quote me on this: In large measure, people who fight over the
custody of their children are nothing more than hostility junkies,
unable to give up the power struggles of their marriage."
Does
hope lie in UFC-sponsored mediation? That, too, remains to be seen. If
mandatory mediation is legislated in as part of a UFC at all, it may
require no more than an initial first meeting between parties. If
mediation does proceed, it will work only with ongoing financial support
for those who need it and with extremely capable mediators. At any rate,
"The job today is not to get mediation into the court system,"
says Evita Roche, a former family lawyer - now a family mediator - who
pioneered family mediation in Ottawa almost twenty years ago. "The
job is to make sure mediators are properly trained. I'm frankly appalled
at the number of people who take introductory mediation, then call
themselves mediators."
She
is among the ever-growing coterie of lawyers who believe deeply in
family mediation. Another is Jon Snipper,
who had twenty-seven years in the trenches before he quit litigating
eight months ago to mediate full time. Though Snipper concedes mandatory
mediation is an oxymoron - "the merit is in its being
voluntary" - he nevertheless argues vehemently for early
intervention. "Call it something else if you want. We need some
feature that forces people to sit at the same table and talk about a
reasonable plan, even a
Band-Aid that will get
the family through the initial six months of crisis before they get
caught in the downward spiral of litigation." But Snipper concedes
some cases cannot be resolved through mediation. They need "a
vigorous cross-examination to prove someone is a liar."
Christie
was gung-ho for mediation. "My wife and I discussed ending our
marriage, but we were in tough financial circumstances. I thought the
plans were to have mediation and counselling and to set up two
households in the spring, when we had more money."
When
his wife fled to a shelter, the act apparently ruined any chances for a
mediated settlement, although good mediators insist they can pick up
the pieces of a nasty divorce any time, even on the eve of trial.
"We get referrals at the beginning of a separation and some after
several years of litigation," says Roche. What breaks her heart
is the devastating effect of litigation on children and parents.
"The people I see who have come through the courts are so depleted
emotionally, mentally, physically and financially. What they have spent
in dollars, what they have spent in energy, what they have lost in terms
of relationships with their children and friends, how their job
performance has declined. It's just a disaster."
Will
all this be alleviated, at least in part, by a UFC? Charles Farrauto,
for one, doubts it. He tells a tale of woe involving one of his group's
members. "He has been ten years in the UFC court system, and he
finally got custody of both his children. He has gone through hell
trying to maintain any kind of a reasonable lifestyle. He is on welfare.
His ex-wife and her new husband are both working, but she was given
eight months to decide how she was going to start paying support. That's
the UFC for you."
In
the end, then, the UFC is no magic bullet. There are obvious human
problems within the family-law system that a UFC cannot possibly
address: ill-prepared judges who may be biased against men,
inexperienced and sometimes incompetent lawyers and mediators, spouses
hell-bent on revenge and assessors who can't separate their own troubles
from those of their clients. At best, expect a minor dent in human
anguish; at worst, a UFC may be nothing more than the latest pretty
template imposed on a system as dysfunctional at its core as the
crumbling families forced to use it.
Lynne
Cohen is a Nepean writer and non-practicing lawyer.