April/May 1999

Ottawa City Magazine  

And justice for none

Family court in Ottawa is getting a face-lift­ but the deep scars in the system may be too hard to erase

By Lynne Cohen

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.