Law Plus not Law Minus
Alternate Approaches to Problem Solving
Separation and Divorce
The Honourable R John Harper
January 16, 2024
Law Plus not Law Minus
Alternate Approaches to Problem Solving
Separation and Divorce
The Honourable R John Harper
January 16, 2024
What follows are my thoughts on how family lawyers, helping professionals and judges can make a difference as long as the proper skills and systems are put into place. Well intended processes without skilled professionals involved in the implantation of those processes remain just well intended. The goal of everyone involved in family law should be to the achievement of a “Just Result” for the family and not “Just a Result”.
My observations come from my experience as a family lawyer who was a certified specialist in family law in Ontario, Canada for over 30 years. This was followed by me having the great fortune to being appointed to the Superior Court of Ontario from 2006 until October of 2023.
I am presently embarking on my newest venture as a mediator, arbitrator and advocacy consultant.
Why Alternate Approaches to the Court System
Control the Outcome and Participate in Shaping the Process
You can control the outcome of your own dispute. Resolution is yours to create not yours to be imposed upon you,
You can participate in the formulation and adjustment of the process as it proceeds.
Not so in court.
The rules of court determine the next steps. A judge imposes an outcome.
You have no input to who that judge might. What the assigned judges’ qualifications, character and temperament are.
In many jurisdictions, you have no knowledge of whether that judge is a willing participant to dwell in the family docket or is just doing his or her time there as directed by others.
The Court Process is public.
It is very rare that a sealing order is granted in the courts. The courts are open to the public. That is a fundamental precept of a democratic society.
Alternate approaches to problem solving, such as Mediation, can and should be a confidential process. An atmosphere in which disputants can be creative in their solution-oriented approach as opposed to protective of their litigious positions.
You make the decisions and agreements, but you are not required to reach an agreement.
By becoming involved in an alternate solution process you do not give up your right to file or pursue a lawsuit in court. However, that process needs to be put on hold while the process that you control is underway.
A solution-oriented approach strives for a win-win situation for every party taking part in creating that solution. The court process strives to analyze what evidence is to be accepted in order to fit the legal criteria of the claims before it. Often resulting in a win-loss imposition.
The mediator is an impartial, trained professional whose task is to assist you to try to work things out yourselves.
Compared to the court and trial process, alternate approaches such as mediation is relatively inexpensive.
You Are not Subject to the Court’s Clogged Schedule
One of the most significant problems within the court system is the lack of judicial and other resources to deal with the numbers.
The courts are clogged with astronomical backlogs that were heightened by the COVID pandemic.
Contributing to the clogged court system is the fact that 50 to 75% of the users of the court process are self represented litigants. This slows everything down. Judges are put into the difficult position of having to inform about the process without crossing a line into legal advice and perceptions of bias. It is hard enough for lawyers to understand and work within the legal system. It is almost impossible for self represented individuals to survive in that world.
The time to the next steps within the court process is of necessity inordinately delayed.
Justice Delayed and Lack of Resources to Deal with the Emotional Complexities of Family Law
Inordinate delay is not only justice denied, in family law, it is a major contributor to a climate that exacerbates the emotional turmoil that is often a major feature of families going through separation. The greater the emotional distress the more difficulty in attempting to focus on solution options. In any contest of emotion vs logic – emotion wins.
Complicated emotions and psychological issues.
Within the court process there is rarely an opportunity to recognize the rapid varying emotional states of the major players that create blocks to rational ways forward.
Example
At Date of Separation (DOS)
• F – Angry.
• M – Depressed and immobilized.
• Cs – Anxious and afraid
These emotional states often shape the litigation. They permeate the pleadings. They create the climate of action vs reaction.
The court system is a catalyst to the festering of the ever-changing toxic emotions that must be dealt with in order to allow the parties to reduce to fog that clogs their reason and logic.
Complications come from the ever-changing emotional and psychological states within the family unit.
At the Argument of the First Court Motions
- F is depressed
- M is angry and easily moved to vengeance
- Cs are depressed, angry and fearful and acting out.
This dynamic becomes and unbroken and destructive cycle. It results in an emotional and financial catastrophe if left untreated. The Courts do not deal with these heightened states of emotion and psychological distress. They deal with the distorted evidentiary explosions resulting from that distress.
What is all too prevalent is the ever-increasing amorphous blob of pleadings, affidavits and depositions that say little about the material issues to be resolved. However, it is very clear that the most important problems to be solved are lost within the fog of the increasing battles that become the focus.
When I was a young lawyer, I went to a conference in Western Canada and was fortunate to hear the Honourable Mr. Justice Bayda of the Saskatchewan Court of Appeal. He related talked about a decision that he was the dissenting opinion way back in 1976. His words from Wakaluk v. Wakaluk, 1976 CanLII 1946 (SK CA), at pp 299 and 300 still resonate today:
From the standpoint of custody, the hearing of the petition was, in my respectful view, quite unsatisfactory. Virtually no evidence was directed to this issue. The parties primarily concerned themselves with adducing evidence to show whether, on the basis of the many marital battles engaged in by them, one or the other of them should be favoured by the trial judge in his determination of the issue of cruelty. No one bothered to bring forward much information in respect of the two individuals who of all the persons likely to be affected by these proceedings least deserve to be ignored — the children. We know their names, sex and ages, but little else. Of what intelligence are they? What are their likes? Dislikes? Do they have any special inclinations (for the arts, sports or the like) that should be nurtured? Any handicaps? Do they show signs of anxiety? What are their personalities? Characters? What is the health of each? (This list of questions is not intended as exhaustive or as one that is applicable to all contested cases but only as illustrative of those questions which may be relevant.) In short, no evidence was led to establish the intellectual, moral, emotional and physical needs of each child. Apart from the speculation that these children are "ordinary" (whatever that means) there is nothing on which to base a reasoned objective conclusion as to what must be done for this child and that child, as individuals and not as mere members of general class, in order that the welfare and happiness of each may be assured and enhanced. Nor was any direct evidence led to show which of the parents, by reason of training, disposition, character, personality, experience, identification with a child's pursuits, ability to cope with any special requirements of a child's health, religious observance and such other pertinent factors (again the list is intended as only illustrative of matters which may be relevant), is best equipped to meet the needs of each individual child.
The evidence presented on behalf of each side was principally, if not exclusively, geared to do one thing: show how badly one spouse treated the other. Such evidence is hardly a proper basis upon which to make a determination — a crucial one indeed from the standpoint of the children — as to which parent is best suited to meet the needs of the children and upon which to found an order for custody. How inconsiderate one spouse is of the other, or how one spouse reacts towards the other in a marital battle and the ability of a spouse to come out of a marital battle a winner, either actual or moral, are not high-ranking factors, if factors they be at all, in determining where a child's happiness and welfare lie, particularly whether such happiness and welfare are better assured by placement with one parent or the other.
It is astonishing that 48 years after Justice Bayda uttered these words that the courts are still full of cases that amount to the same daily chronicles of battles that lob grenades instead of presentations that define the problem and describe how that problem can be solved.
Could it be that the process itself promotes this dynamic. At its least, it is a contributor to it.
In Ontario, the Family Law Rules were amended to have as a primary purpose, the achievement of a just result.
The process incorporates providing information to parties that is intended to give educate them on, not only the court process but also the impact on families that are separating. These information programs (MIPS) are what they say they are. Parties must attend them.
When I was Senior Family Judge of the Superior Court of Ontario from 2010 to 2013, I participated in the implementation of the MIPs. The thought was that information was power and would help orient parties to a way of thinking that was more rational and forward thinking. Unfortunately, there was no funding for any research to track the success of lack thereof. The objective results remain unknown.
Coincidental with the MIPs there was the implementation of a process in the Family Court Rules that provided for mandatory conferencing before a judge that was targeted to attempt to narrow the issues and discuss settlement and either settle early or at least move the case to the next settlement conference in an efficient and meaningful way.
The Rules also provided that parties could not have access to the court to bring any motions until they had a first Case Conference.
One of the reasons for this approach was to prevent all too often lob of the initial grenade. That being, a motion that was filled with scurrilous affidavits that started the action/reaction syndrome.
The initial thinking was that a case conference brief would be created that would focus on ways to narrow the issues and suggests solutions.
The reality was not what was intended. Delays in the process prevented parties form being able to even get an initial case conference for 7 to 10 weeks. That contributed to the festering of the wounds instead of allowing for the opportunities for reasoned approaches.
The Case Conference Briefs that were presented were merely a regurgitation of the litigation positions that often contained the very same grenade lobbing that the process intended to avoid.
Lawyers and judges were not given the education and training tools to develop the skills necessary to properly implement these well intended procedures.
That education and training is still an absolute must. Lawyers need to be given the tools to allow them to preserve the litigation while at the same time zealously advancing options for livable and workable solutions for the families.
Judges need to be given the same tools. This approach is what I mean by my often used phrase that” “family law is law plus not law minus”.
In addition to these alternate approaches training judges need to be proficient at conducting trials that proceed with civility, dignity, as well as the highest level of knowledge of the trial process.
I am of the view that alternate approaches to solving family disputes must be seriously and competently looked at from the outset.
I am also aware that there is that approximate two per cent of cases that must go to a completed trial.
For those matters that will occupy the court process for at least a period of time, we need to develop the skills of lawyers, judges and helping professions that can work individually and together to allow the system to work for families in a way that it has not.
Most importantly we need to find ways to incorporate the helping resources to assist with the emotional and psychological distress along the way. Without this, the unbroken cycle will continue, and the destruction will prevail.
The integrated resources of legal, judicial and health professionals is not only possible, but also necessary. Families need to be able to keep the focus. Keeping the eye on the long term prize. Creating a workable and livable construct for the newly shaped family.