Friday, October 10, 1997

The Ottawa Citizen

How to clean up our family law mess

by Lynne Cohen

It is fashionable to denounce every aspect of the crimina1 justice system, though most of us have never met a convict or violent criminal. Yet we al1 know intimately numerous users of the family law system, in which vastly more people than in the crimina1 sector experience prohibitive expenses, inexperienced lawyers and truly unbelievable judicial rulings.
Like most criminal court matters, almost all family court matters - from the early and vicious interim motion for support and custody to the highly acrimonious property trial sometimes 40 months after separation - are completely open to the public, and could no doubt benefit from some press and public scrutiny.
"The system here could use a lot of improvement," says Hunter Phillips, one of about 15 senior family law lawyers in Ottawa who practise exclusively in the field. "It is far from perfect."
But there is hope, he adds: "Both the federal and provincial governments have hinted that the region is to get a Unified Family Court soon." Efficient and comprehensive, the UFC system employs only dedicated specialists - including judges - and a case-management approach to the entire divorce process. It has already proven its legal worth in five Ontario regions, including London, Kingston and Barrie.
It can't happen fast enough. My limited experience in Ottawa's multi-million-dollar family law industry - handling parts of 10 matrimonial cases during my articling year; going through my own mild, non-litigious divorce; and, more recently, helping a few close friends through unending and unbearable custody battles - bas taught me to fear the system.
What inevitably exacerbates many difficu1t divorces - each of which can cost an average-income family as much as $120,000 - and what helps make Ottawa one of the most expensive and inefficient family court jurisdictions in the province is the plethora of inexperienced lawyers who have added recession-proof fami1y law to their real estate, commercial or even crimina1 practices. .
"Family law is not for dabblers," says Julian Payne a University of Ottawa family law professor and one or the architects of Ontario's UPC system 20 years ago. "It is a field for experts, and I mean right up the line from the lawyer to the judge. It can be extremely complicated."
But family law is a magnet for hungry 1awyers, hurt by legal aid cutbacks and the economic downturn. Some 400 are handling close to 2,000 matrimonial cases in the Ottawa area alone.
Phillips, who charges $250 per hour, prefers that his clients' spouses retain the best - "after myself" - family law lawyer in town, "so we can reach a settlement without litigating. "
About 85 per cent of his clients, like the majority of divorce parties generally, settle out of court either through solicitor negotiation or mediation. "Even of my cases that start in court, less than five per cent end up going right to trial," he says.
The merciless trial route is often travelled by angry, intransigent spouses who steadfastly resist coming to terms with reality, such as by refusing to pay child or spousal support even where they are clearly indicated.
These are the clients who the senior solicitors decline to represent. "I tell them to get another lawyer," says Phillips. "They just shop around until they find someone who is prepared to do whatever they want, as long as the bills get paid."
Evita Roche, a former family lawyer who pioneered this region's still underutilized family mediation process 15 years ago, notes that parties in a divorce go through the grieving process, including the early denial and anger phases. "It is during the anger phase that they usually retain lawyers," she says "when 'money is no object.'"
As the case progresses, says Roche, the client runs out of finances, is confused, the bills start not getting paid and the lawyer's enthusiasm weakens. The entire process, she states, "is devastating to parties and their children."
In the business of rescuing casualties of the court system, Roche suggests every lawyer start recommending mediation early.
The way it is now, she finds, in many cases, "by the time both parties agree to mediation, they have exhausted all their resources, both financial and emotional. They tell me what they have been through the last three years in the courts has not been worth it at all."
Unfortunately, some in-experienced family law lawyers - charging as little as $110 per hour - are simp1y clued out. "They don't know what the courts are doing," says Phillips. "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 make the decision."
Which can be disastrous, especially if you happen to be a child on the losing end of a bad ruling. In a custody motion argued five months ago, a newly appointed judge ordered the children to go to an unnamed babysitter after school instead of to their own parent, who had already been looking after them almost full time for 15 months.
Instead of deciding on interim custody, judges often order a psychological and home "assessment" of each parent. As recently as five years ago, says Dr. David McLean, director of the Family Court Clinic at the Roya1 Ottawa Hospita1, "We were doing about 100 court-ordered assessments a year," a significant number of which, according to a study by his office, resulted from false accusations of abuse.
Besides the FCC, there are at least 10 other assessing agencies in Ottawa. And though the number of court ordered assessments - each of which can cost $5000 - is down, there are still clear instances where they are unnecessarily required. This includes lawsuits with well-documented and serious psychiatric histories involving the access parents. In such cases, judicial common sense should prevail earlier and decisively.
Cleaning up the family law mess in Ottawa probably requires at least several serious advances: the earliest possible establishment of a UFC; more lawyers promoting mediation early in each case, and at least a few spot checks by reporters dropping in on some interim motions.
These combined efforts might help bring the system to its collective senses.

Lynne Cohen is a Nepean writer and non-practicing lawyer.