Supreme Court Chief Justice Beverley McLachlin has called for reform of the family law system, “from the ground up” and says that it is too costly, too adversarial, too inaccessible and says that parents and children are “seriously damaged” by the current system. She has struck a committee, headed by Supreme Court judge Thomas Cromwell which has produced a report in April, 2013 available at www.cfcj-fcjc.org.
This report says a lot that parents and their advocates would agree with. But the solutions suggested in the report seem to be more of the same: more control by the legal profession, more money for lawyers in the form of legal aid, etc. Cromwell and McLachlin and the CFCJ have, it appears, only consulted with the legal profession and a few other “hangers-on”, i.e. those who earn their living in the divorce industry. There has been no consultation with parents’ advocates or organizations promoting non-adversarial, equal parenting alternatives. There are problems in the system which cannot be solved without involving parents as full partners.
The recommendations of Cromwell and associates assume that legal professionals are the only stakeholders, that is, that parents and children are not. The current system is feudal in its thinking and actions and such thinking is clearly displayed in Cromwell’s report. Many parents who have lost their children to Canada’s family law system the description as feudal, with judges acting like feudal lords, able to take your children away at any time, for virtually any reason. There is no provision in Cromwell’s report for limiting judicial discretion in removing fit parents, no commitment to equality of parents, no assurance of due process before allowing the legal system to remove a parent, and no consequences for abuse, bullying or exploitation by legal professionals of parents and their children. Parents forced to use Canada’s family law system report these complaints consistently. The report recognizes the failing of the family law system and the need for substantive change but fails to recognize the legal profession’s part in creating, protecting and excusing the failing procedures, outcomes and treatment of parents and children.
Cromwell’s report is not all bad: Here is a recommendation that the Canadian Equal Parenting Council (CEPC), as a national organization of parents, would agree with:
Recommendation 29:
That Canadian family law statutes encourage consensual dispute resolution processes and agreements as the norm in family law, and that the language of substantive law be revised to reflect that orientation.
That recommendation, in essence, is what the 2009 House of Commons Bill C422, co-sponsored by CEPC and MP Maurice Vellacott, aimed to do. The word “consensual” is important, and a very welcome addition, as parents complain that courts separate them from their children against their will. The essence of equal parenting reforms is that both parents are treated equally, unless proven unfit. Consensual implies equality in initial position and in freedom to agree. You are not equal and in a position to freely consent if you have already been arbitrarily separated from your children, and the legal profession is telling you that regardless of how fit a parent you are, courts will decide on the “status quo”. It is not freely consensual if you cannot afford a full court process and are thus forced to agree to sole custody to the other parent because of cost, sexism of the courts, parental alienation or your unwillingness to subject children to adversarial legal battles. Most cases in Canada are decided thus, as the expression goes, “in the shadow of the court”. Most cases are decided when one side runs out of money and is forced to settle for being an “access” parent (merely an “interested observer” says the Supreme Court) rather than an equal, respected parent.
There is much discussion of “access” in the report, but it doesn’t mean access to children for a parent. It means paying a lawyer for getting process from a system that the report admits is a terrible failure.
In 1968, parents were promised “no-fault divorce”, but the legal profession usurped the process, made it adversarial and discovered a huge source of income in removing children from one parent, most often the father.
In 1975, the Law Commission of Canada reported on the problems and this resulted in the MacGuigan/Crosby reforms of 1984-86, in particular, the “friendly parent” rule in the Divorce Act, which, in the opinion of some judges and many legislators, was intended to direct joint custody (shared parenting) as the default, norm or presumption. That rule has subsequently been sabotaged and undermined by the legal profession, with the rationalization that whenever there is conflict, only one authority (parent) is a solution. This is feudal thinking.
Here is how it works most often in the real world: the legal profession tells mothers that they can get sole custody and more money by seeking sole custody. Lawyers measure success by money. Fathers are told they don’t have a chance at sole custody in the courts, regardless of the relative fitness of the two parents. Many fathers thus seek joint custody. Most mothers seek sole custody, often to assuage fears of financial insecurity. That appears to judges as conflict, and they “resolve” that by awarding sole custody to the most unfriendly, sole custody parent. Few fathers can afford the legal system and thus are forced to “settle” for access, which depends on mom being co-operative. Legal profession feudal thinking rewards the adversary who seeks sole custody, and sole custody is achieved by procedural non-co-operation with the other parent. Rewarding non-co-operation or conflict-generation through provocation, accusations and falsities on affidavits is how the system normally works. The legal profession is then surprised that the unco-operative sole custody parent obstructs access by the other parent. Thus, the legal profession produces reports such as this one, promising fundamental change but the profession remains trapped in the mental prison of feudal thinking.
In 1998, the report of the Senate Commons Joint Committee on Child Custody and Access made 48 recommendations for reforms, most suggesting joint custody or what we (CEPC) call equal parenting. Every one of these recommendations has been blocked by the vested interests of the legal profession. Meanwhile, billions in taxpayer dollars have been poured into pretend reforms, which reinforce legal profession incomes, control, and their feudal thinking.
Cromwell’s report suggests more of the same by pushing “unified courts” and other favorites of the legal profession. Unified does not mean uniform, it means a feudal-thinking judge who always rules against male parents can discriminate with impunity, and that parent has no alternative.
The reality is that there have been numerous similar legal profession-led reform reports and initiatives going back over 40 years. All have promised change “from the ground up” or similar language, as Cromwell’s report admits. None have delivered any significant change in outcomes from the standpoint of parents and children. All such initiatives have increased the control, incomes and careers of legal professionals.
Cromwell’s report portrays two basic alternatives as adversarial and non-adversarial. Correct. But then Cromwell goes on to repaint these as “rights-based” versus “interests-based”. What is wrong with this? Firstly, it suggests two legal profession approaches based on adversarial rights and adversarial interests, i.e. that both alternatives should be monopolized within adversarial legal processes. Reports from the Canadian Bar Association (CBA) opposing equal parenting reforms suggest that the legal profession believes that parental interests, especially fathers’, are inherently opposed to the “best interests of the child” while interests of judges and the legal profession are (falsely) non-existent or that they always act in the interests of the child. This is more feudal thinking, which has led the legal profession to oppose mediation and other non-adversarial alternatives, or impose unrealistic conditions (e.g. no power imbalance, no accusations of abuse, safety, etc.) or for lawyers to take over mediation and turn it from conflict resolution to just another adversarial process dominated by lawyers.
Cromwell’s use of “interests” and “rights” in this report is curious, in the context of the legal profession campaign against parental rights. We note that former Attorney General Martin Cauchon stated that “parents have no rights, only responsibilities.” CEPC suggests that a balance of rights and responsibilities must be part of any conflict resolution system. “No rights” is feudal thinking which generates conflict. That conflict is exploited by the legal profession for profit.
If parental rights are human rights, then family courts are depriving parents of rights without due process of law. Equal parenting reforms suggested by parents’ groups such as CEPC should be a “Magna Carta” to restrain the feudalists from violating basic human rights of parents.
Parents report that Charter challenges in family law are routinely blocked by judges with the argument that the challenge needs to be introduced at the very beginning of the process. However, the legal profession argues that the decision to “award custody”, which in reality is removing a parent from the child, only happens at the end of the process, that is, when there is a Court order. They say a parent cannot claim that losing their children is a rights violation unless they do it before it happens, and procedures mean that you can’t make such a claim after it happens: a catch-22. The legal profession has thus trimmed the “living tree” of parental rights back to a dead stump.
One very unbalanced point which recurs repeatedly in Cromwell’s report is the emphasis on “safety”. “Safety” in the context of family law is feminist code for stereotyping fathers as abusive, violent and untrustworthy. It is the most effective weapon against joint custody and for sabotaging non-adversarial alternatives such as mediation. As Cromwell points out, family law is largely fought through the medium of affidavits. We would add that false or wildly exaggerated accusations abound in affidavits, most of which are never proven. They seem to be designed to provoke parents when they are most vulnerable. “Safety, “fear”, “abuse” are common suggestions in affidavits seeking to remove custody from the other parent, a fact that seems lost on Cromwell and his report. Let us look at the facts of abuse: according to Statistics Canada the rates are that 6.4% of women report abuse (as widely defined) versus 6% of men. Is this sufficient difference to justify 90% of fathers effectively losing their children in divorce? Social science research reveals that sole maternal custody increases the risk of abuse to children, mostly from neglect, but also increases risk of abuse from mom’s new boyfriends and child predators who often target children of single mother families. Shared custody or joint custody actually reduces abuse, and increases child safety, but judges and the legal profession appear to be wilfully ignorant and blind to the clear message of social science research.
Sole maternal custody, apparently the preference of family courts and the legal profession, imposes severe disadvantages on children, and this is admitted in the report. Yet, nowhere in the report is there any recognition of the negative effects on the child of the loss of a parent. Nowhere in the report is there any recognition that the threat of losing a child might be a source of the conflict that the report claims to be so concerned about.
Cromwell quotes the legal profession admission of the need for “drastic change”, “fundamental overhaul” a “paradigm shift” and for a family justice system that is “fundamentally different” but admits the failure of countless legal profession initiatives. The report suggests an “implementation gap” and asks three very good questions, and here is how we suggest many divorced parents might respond:
Q. What is it that motivates these assertions? A: An undeniable problem and the need for the legal profession to cover up the huge problem with promises to change, while maintaining careers and profit.
Q. What are the nature and degree of the changes needed to make the family justice system more workable? A. We need equal parenting. This is further detailed in 6 specific steps at the end of this response.
3. What is it that is getting in the way of the needed changes? A: the legal profession: expecting an inherently adversarial profession to implement non-adversarial changes which threaten their income is simply not realistic. Attempting non-adversarial changes without working with parents and other clients of the system is also uncollaborative, feudal thinking.
Many lawyers themselves have extremely negative views of family law. They often feel that family law is not a law as criminal, civil or administrative law is law. Family law is not truth finding, or conflict resolution, or applying legal principles. It is simply exploiting powerless, vulnerable people (parents and children) through an arbitrary, opaque process, through a legal profession monopoly, for profit. In short, it is exploitation of the common people by feudal lords for power and position. The report suggests tinkering in the law schools can change the perception of family law. A real solution is to get the legal profession and its adversariality out of family conflicts and turn over this area to conflict resolution and parenting specialists, especially for child custody. Family breakup is not a legal problem, it is a human problem.
There one point where I would accuse Cromwell and the CFCJ of intellectual dishonesty. Until this is fixed, there is no hope for system reform.
The report quotes BC statistics from LEAF (a feminist tax-funded legal group which serves only women) that 77% of BC legal aid funding went to women as discrimination against women, stating, “cuts to family legal aid have a disproportionate effect on women and children” But women overwhelmingly win custody in family court cases. Overwhelmingly they get most of the legal aid. They get domestic violence shelters and parental tax benefits denied to fathers. Yet, Cromwell’s report suggests that they are disadvantaged. We note that disproportionately more men are self-represented, are charged more by lawyers for the same service and pay more in child support than women at the same income levels. Perhaps we can respectfully ask Justice Cromwell if the situation was reversed, and women lost in family court, would they be thus advantaged? The argument that there is a “power imbalance” in favour of men in family court is intellectual dishonesty and suggests validity in the claim that the legal profession is prejudiced against fathers in family courts. CEPC surveys suggest that most Canadians believe that there is gender bias against fathers in family law.
The report’s classification of women and children together, and men separately shows the bias of the report and its authors. This is more feudal thinking which leads to separating men from their children for power and profit, while piously claiming “best interests”.
It is unfortunate that the report refers to itself as NAC “National Action Committee” (on Access to Justice in Civil and Family Matters). NAC was the acronym of the National Action Committee (on the status of women) which virulently opposed equality for men, campaigned against non-adversarial family law reforms, and promoted an extremist gender ideology (they invited a known gender apartheid extremist to Canada, paid by tax dollars, who stated, “get men killed or get them jailed.” NAC is led by Supreme Court Justice Beverley McLachlin and Justice Cromwell, says CFCJ. It is difficult to imagine any more provocative abbreviation if the intent was to sabotage collaboration with advocates for parents (mostly fathers) who have lost their children to the sexist system so promoted by NAC, LEAF and SOW (Status of Women) Canada.
CEPC as a national parents’ advocacy group is not just criticizing as here we provide the essential steps for implementation of real reforms which we call equal parenting:
1. Services, and funding for advocacy must be equally available to both sexes.
2. Balanced education which empowers parents, must be provided which includes information on abuse, parental alienation, sole custody disadvantages, how-to of conflict resolution and parenting plans.
3. Mandatory mediation with appropriate funding for all family law cases where there is a dispute.
4. Presumption of the equality and fitness of both parents, with the onus on the disputing parent to prove otherwise.
5. The legal profession, including judges, must be held accountable for the outcomes of their decisions, in particular the rights of children to benefit from both parents (as in the UNCRC) and the onus on the State to facilitate parenting by both parents.
6. All cases to be decided “in the shadow of” an equal parenting law, in which parents can freely consent to any informed custody or parenting time agreement, but that law also restrains judges from removing custody from any parent unless proven unfit.
Justice Cromwell’s report, like many similar before it, is merely aspirational. He and the other “leaders” in the legal profession need to explain how he proposes to get to the outcomes described without a comprehensive plan such as our proposed “equal parenting” alternative detailed above.
Glenn Cheriton, President
Canadian Equal Parenting Council
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