Legal system slammed for failing families
TheGlobeandMail.com – National/Ontario – Courts and lawyers ignore children’s needs and drain bank accounts of battling spouses
September 17, 2010. Kirk Makin Justice Reporter
At one of the most stressful periods of their lives, separating couples are driven to the poorhouse by a family law system that fails to deliver workable solutions while their children are often hurt by a system that doesn’t take their opinions into account, a report by the Law Commission of Ontario says.
In one of the most in-depth looks at what ails family law in many years, the report indicts the system for draining parents’ bank accounts, ignoring expert advice in favour of simplistic solutions and leaving children out of the process.
The report, which was based on interviews with roughly 100 social workers, lawyers, judges, counsellors and individuals caught up in the machinery of family law, also proposes a series of solutions, including more money for low-income litigants.
While battling an ex-partner in court can be costly – cases that go to trial can ding the participants for well over $100,000 – the report’s authors said there is substantial concern judges cannot or will not step in to stop overly litigious spouses from wearing down an ex-partner through “legal bullying.”
What’s more, many parents who tried to access legal aid funding ultimately gave up because they felt ignored or rejected by “unfriendly” staff.
Many social workers and mental-health professionals also complained that lawyers and judges often paid little attention to their findings, sticking instead to more simplistic concepts. For example, judges often hold to the idea that equal parenting is always best when in some cases it isn’t, it said.
Some of these professionals were amazed that governments license drivers, but do not take steps to educate people before they blunder into marriage.
Even individuals who want information about their marital obligations are “immensely” nervous and embarrassed about seeking it out, the report said.
“Many people find it ‘suspicious’ that someone would want to get legal information at an early stage of a relationship and would prefer not seeking it for fear of being perceived as not trusting their intimate partner,” it said. “Most people are afraid that these conversations would destroy their relationship.”
The report also found widespread skepticism of mandatory mediation, partly because mediators are poorly regulated and often untrained, and partly because the process that only works when both participants are voluntarily committed to it.
The report found children felt the costly process was draining their parents’ money and that courts had little interest in their opinions.
“Children want to be heard but they feel they have no voice and no power in relation to adults, including their parents, lawyers, counsellors and judges,” it said.
At home, the report said children often feel obligated to “parent” an emotionally needy mother or father at the same time as they nervously watch family finances dwindle away.
Stan Barron, a father who has spent 14 years and over $200,000 fighting with his ex-wife over custody of their children, said money was his overriding problem. Besides the burden of high legal fees, Mr. Barron said litigants must be prepared to match their ex-spouses expert for expert when it comes to mounting a case.
“It has bankrupted me,” said Mr. Barron, whose sons are now 16 and 19.
He also observed that different judges are repeatedly parachuted into long-running cases. “It would be a massive improvement to have one judge follow a case from start to finish,” Mr. Barron said. “I was shocked when I started this process. You have to reinvent the wheel every time.”
The report details a number of solutions to the problems, many of which deal with making it easier for people to afford the high cost of litigation. Among the suggestions included in the report are more flexible payment systems to allow people to pay their fees incrementally and a sliding scale to make legal services more affordable for low-income people.
It also suggests ways to better co-ordinate services for those with family problems, such as police and women’s shelters, suggesting that some services should team up to share space and that case workers should communicate more.
With a report from Adrian Morrow
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