Abstract

This paper examines the harm to families and particularly children, caused by the litigation method of dispute resolution for making parenting plans. That this harm occurs in the area of law entrusted with promoting the best interests of children is morally, ethically, and legally unacceptable.

The litigation method was created for criminal and civil law matters. It was never intended to be applied to separating families. Family law matters are vastly different, the most significant difference being the involvement of children.  Litigation reduces the complex dynamic of a separating family into the disembodied legal fiction of two opponents, one to become the “winner,” the other the “loser.” The exacerbation of conflict between separating parents arising from litigation places a child’s needs and development at risk of serious harm and, amongst other consequences, violates the UN Convention on the Rights of the Child. That said, court orders and litigation may be necessary for the safety of family members in cases of serious violence, alienation, abuse, or mental health disorders.

An understanding of children’s needs and development lies outside of the family law field, in what the writer refers to as the “Caring Professions” (i.e. child development specialists, psychologists, physicians, social workers, etc.). Research conducted by these professions established decades ago the serious risks that litigation’s adversarial method poses for children.

The Law Society of Ontario (LSO) is failing its principal mandate to protect the public with regards to family law lawyers. While the LSO regulates the conduct of all Ontario lawyers, it has failed to address the unique nature of family law, which requires specific attention to and regulation of lawyers in this field. This has produced a broad spectrum of conduct within the family law culture with some lawyers, without facing sanctions, practicing in ways which damage separating families and children.

The problem of our Family Justice System is larger than “a few bad apples.” Recognition must be given to the fact that all lawyers representing a parent owe a duty to both the client and the client’s children, children being the beneficiaries of the duties owed to them by both their parents and their parents’ counsel. Further, the way that a lawyer assists parents can significantly impact children’s outcomes.

Beyond this, the system’s adversarial core requires transformation. In the short-term, “child-centred advocacy” and several practice initiatives are proposed to initiate this transformation. Their principal aim is to reduce parental conflict and its corresponding harm to children. In the long- term, structural change is proposed to transform our litigation system into a non-adversarial, multidisciplinary, problem-solving system.

All of these reforms will require lawyers and judges to collaborate with the Caring Professions who first recognized how litigation harms children. Without their assistance these harms will continue. These reforms cannot be delayed for several reasons, the most important of which is that increasing numbers of Caring Professionals refuse to work with “bad apple” lawyers and an adversarial system with its inherent stresses. If this trend continues, a trend given little notice, its results will be devastating for separating families in Ontario.

That said, real change to Ontario’s Family Court Justice System is possible with the necessary leadership, courage, and vision. Such change has occurred in Singapore’s Family Justice System. It has transformed its adversarial-based court into a non-adversarial, problem-solving, multidisciplinary court through the application of therapeutic jurisprudence, putting into practice and exemplifying much of what this paper proposes.

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Questions or comments? Contact the author

If you have any questions or feedback about this document, I’d love to hear from you! Feel free to reach out to me via email at info@vincentramsaylawyer.ca. I value your input and appreciate your engagement.

 

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Acknowledgements and thanks

Professor Nicholas Bala has been my mentor throughout the writing of this paper and has provided critical feedback as well as unwavering encouragement and support. I wish to express my sincere thanks and appreciation to him, Dr. Sian Phillips Ph.D., C.Psych. and Professor Michael Saini for their insight, knowledge, and patience in developing the vision of this paper and without whom it could not have been written. My particular thanks to Dr. Robert Rowe PhD., C. Psych., Dr. Barb Campbell MD, and Gord McDiarmid LLB for their thorough, critical reviews of this paper, as well as to Dr. Philip Carney Ph.D., C.Psych. (Retired) and Karne Kozolanka PhD. for their wise advice. Many thanks to Kenneth Pedlar Superior Court Justice Retired, Mr. Justice Marvin Kurz Superior Court of Justice, and Alfred A. Mamo for their support and reviews of this paper. I also wish to express my sincere thanks to the many colleagues and friends who have read one or more of the various drafts of this paper and provided valuable feedback including: David Hoffman, Judy Millard, Doug Caldwell, Trish Crowe, Leanne Wight, Karla McGrath, Sheila VanDerHorden, Steven Leitman, Mark Frederick, Christina Rorabeck, Sandra Kapasky, Kate Deveau, and Sharlene Weitzman.  Many thanks to my assistant, Brenda Carew, for formatting several drafts of this paper and her invaluable research assistance, as well as to my daughter, Natalya Maksymec, for her detailed editing and for her assistance in clarifying some of the paper’s key concepts. Further thanks to my friend and colleague, Mary-Alice Thompson, for her thorough editing and crucial assistance in the publication of this paper. My apologies to anyone whose name I may have neglected to include.

Finally, my thanks to my wife, Marta Maksymec, for her patience, rich insights, and enduring love, as well as to our three children, Natalya, Marika and Zorian for their wide-ranging interests, deep affection and love. And, of course, to Emma and baby Heather as well!

Some of the central ideas for this paper were from: Nicholas Bala, Patricia Hebert and Rachel Birnbaum “Ethical Duties Of Lawyers For Parents Regarding Children Of Clients: Being A Child-Focused Family Lawyer” (2017) 95:3 The Canadian Bar Review 557 and from the “Special Issue: Therapeutic Jurisprudence and Family Law”, Family Court Review, 59:3, 409-533.

Any references to names and recognizable details in this paper have been changed to protect the privacy of the individuals.

 

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Keywords

Harm; Damage; Adversarial; Litigation; System; Family Law; Family Court; Parents; Children; Best Interests; Separating Families; Ontario; Transformation; Change; Culture; Proposals; Reforms; Lawyers; Role; Judges; Legal Fiction; Exacerbation; Conflict; Origin; Needs; Development; Caring Professions; Psychologists; Physicians, Social Workers; Law Society; Failure; Protect; Public; Regulates; Conduct; Sanctions; Peacemaker; Hired Gun; Case History; Human Toll; Victims; Research; Child’s Rights; Denied; UN Convention; Critical Link; Collaborate; Equal Partners; Child-Centred; Client-Centred; Advocacy; Beneficiaries; Duties; Parent’s Counsel; Practice Initiatives; Parental Conflict; Non-Adversarial; Multidisciplinary; Problem-Solving; Collaborate; Leadership; Courage; Vision; Singapore; Model; Therapeutic Jurisprudence.

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