HEART's Two Letters to the Committee
|Preliminary Comments of 28 April 1997|
|Supplementary Comment, Regarding Rule 216, of 19 June 1997|
Human Equality Action & Resource
2A The Market Place, East York, Ont. M4C 5M1
Phone (416) 410-4141
28 April 1997
Secretary of the Family Rules
130 Queen Street West,
Toronto, Ontario M5H 2N5,
C A N A D A
Re: Family Law Rules Consultation Draft
Dear Sir or Madam:
Our organization has been tasked with a preliminary examination of the proposed new family law rules, on behalf of the Ontario Wisdom Council, which is an affiliation of men's, children's, grandparent's and family rights groups from central Southern Ontario (a list of associated organizations is appended). Owing to the lack of notice to these groups regarding the change to the rules, we are unable to submit a commentary which represents a complete process of consultation among the groups concerned, but we have had a vigorous informal discussion among some organization members, and it is certain that the changes that we discuss here are of urgent concern to all.
We are gravely concerned with three problems of principle which must be stated first:
1. SHORTNESS OF NOTICE.
The proposed rules have not been available for public consultation until very recently. Our information is that the committee started mailing out copies of the rules with the associated forms and comments within the last two weeks, approximately. Public notice was not widespread, and our groups only became aware of the proposal to change the rules through an accidental contact between a judge and one individual who happened to belong to one group. It is apparent that the committee never formed an intention to contact groups that might represent the set of interests that concern our members.
2. COMPOSITION OF THE COMMITTEE.
a) Among the names of the committee members, we recognize the names of a number of prominent Feminists. While we do not expect the committee to reflect all of the demographic diversity of Ontario, we do find it unreasonable to expect a just outcome from deliberations of any group which only includes strong advocates of one controversial ideology, and no strong advocates of any other view.
b) We are also concerned to note that the committee, as structured by the Ontario Courts of Justice Act, Section 67, is composed entirely of legal professionals (mostly judges and lawyers). Exclusive representation of the legal profession must produce rules that represent the views of a very narrow stratum of society. In these circumstances, we believe that there is an onus on the committee to consult with a range of interested parties from the larger society, and that the committee has failed to meet this onus.
3. ACCESS TO JUSTICE.
Despite the very brief time that we have had to consider the proposed changes to the rules, we find numerous points at which it appears that the convenience of the courts has been allowed to outweigh the advancement of justice. Some provisions appear to raise human rights issues, which may very well be decided against the procedures described, when they are brought before higher courts. It would be better to modify the rules than to offend against the rights of Ontario citizens, and force them to undergo the expense and discomfort of correcting the rules via the courts. Details of some of our concerns are appended.
We do find that some of the revisions are necessary and beneficial in the changing circumstances of Ontario society, but the defects of the proposed rules are likely to produce great personal suffering for individuals, and social upheaval for the province as a whole.
We request that the committee extend the time frame for public comment, and make a good faith effort to give notice to so-far-unrepresented groups within the province.
We further request that the committee re-examine the human rights implications of the proposed rules, and consult civil liberties organizations.
Yours very truly,
Eric D. Tarkington
HUMAN EQUALITY ACTION AND RESOURCE TEAM
Sent by FAX to: (416)327-6241
Ontario Wisdom Council, Communicating Organizations
The Ontario Wisdom Council is an affiliation of groups representing men, children, second wives, grandparents, and others who believe that the family courts exercise an entrenched anti-male bias that works to the detriment of all people. The following groups communicate and engage in joint projects via the Wisdom Council:
Defense and Divorce Strategies (DADS), Canada
Durham Non-Custodial Parents (NCP)
Fathers Are Capable Too (FACT)
Fathers for Justice
Freedom for Kids
Human Equality Action & Resource Team (HEART)
In Search of Justice (ISOJ)
Kids Need Both Parents / Hamilton
National Alliance for the Advancement of Non-Custodial Parents (NAANCP), Ottawa
Ontario Men's Directorate
Owen Sound Dads
The Children's Voice
Toronto Father's Resources
Toronto Men's Centre
Preliminary Comments Regarding
The Consultation Draft
Family Law Rules (1997)
1. Limitations and Origins of this Commentary
Owing to extreme shortness of notice and poor access to information, it is impossible for any group or individual to offer more than merely preliminary comments to the Family Law Rules Committee regarding the Consultation Draft Family Law Rules. These comments have been prepared by the Human Equality Action & Resource Team (HEART), and they present selected portions of materials drawn from correspondence and conversation among members of organizations that communicate via the Ontario Wisdom Council.
HEART was asked by the Wisdom Council to promote and collect members' comments in the severely restricted time available, and the authors do believe that the collected materials fairly represent matters of intense concern to all of the Wisdom Council's communicating organizations, but there has been no time for the council to form a committee, hold meetings, produce jointly-prepared documents, or to jointly review documents in reply to the draft Family Law Rules. Communicating organizations may, therefore, wish to prepare independent commentaries for submission to the Family Law Rules Committee.
This commentary represents the views of the authors, developed in consultation with members of the Ontario Wisdom Council.
2. The Need to Abandon the Adversary System
There is a widespread belief among our groups that the use of an adversary system is, to say the very least, inappropriate in family law matters.
2.1 Harm to Children and the Family
In most cases involving families with children, the family lives on, and continues to develop after divorce, in the form of emotional ties that are necessary for children. By choosing a winner, and "scorching the earth" for the loser, the courts may hope to drive the "parties" out of the justice system, but this tactic has been used for decades, experience shows that it does not work, and it is contrary to the well-being of children in any case, because it harms the child's emotional ties.
There is now abundant evidence that children have the best chance in life after divorce when they are allowed to continue their relationships with both parents. Children who are cut off from a parent (usually the father) suffer increased risks of psychological disorders, behavioral problems, poor academic performance, and even involvement in crime. Knowledge of these facts is now a part of public discourse, and it is unreasonable for the courts to ignore these commonly understood harms to children, so long as the good of children remains the court's sovereign value.
Superficially, the court's violence (abduction of one's children, expulsion from one's home, seizure of one's income and assets) is ordinarily done to men, but the effects on children are ordinarily devastating, the risks to children are unacceptable, and the collateral damage done to potential future cooperative relationships between the divorced parents extends to cover even the wives, who are normally the "winners" in the family legal battles. The divorced father is still the divorced mother's best potential ally in successfully raising her children, and she is harmed when he is driven out of his role, even if she may want him driven out during one difficult and confusing period of her life.
2.2 The Court's Responsibility
The courts may say that the harmful outcome of the adversarial conflict is the responsibility of the "parties" and not the court, but the court is willing to conduct the contest and enforce the outcome, and that willingness entraps people (especially those who expect to win) into becoming "parties". The court's unjustified bias in favor of women also creates an increased incentive for women to "beat" their husbands in court, rather than to seek more humane solutions by other means.
2.3 Replacements for the Adversary System
The use of the adversary system in family law should be available to people only after a long and intensive course of education and mediation. The outcome of mediation should have the force and effect of a court order. No person should be allowed to take the advice of legal counsel during mediation, with the possible exception of the child. Child protection issues are the only matters that should ever be allowed to interfere with mediation, and these should be decided in a timeframe (one week or less) that does not disturb the child's relationship with the accused, but possibly innocent, parent.
Parents should enter the mediation with the realistic expectation that they will ultimately agree to divide the duties and rewards of parenting in a way that is equitable, and approximately equal, and that their failure to reach and honor such agreements will lead to loss of parental rights and privileges. The only way to shape parents expectations is to make the system perform, in reality, according to these principles.
The details of developing such a system may have complications and exceptions, but it is hard to imagine how it could equal the daily horrors of the current adversary system.
2.4 Detailed Comments Confined to the Existing, Adversary System
Notwithstanding the critique of the family law system presented in this section, detailed comments presented in this commentary are not intended to substitute any other system for the adversary system, but are provided to illustrate the values and ideals that we wish to apply.
3. Detailed Comments on the Rules
All of the following comments deal with insults to justice in the current family law process which are not addressed by the draft Family Law Rules, or with proposed changes within the draft rules that we believe will introduce new insults to justice.
These comments tend to focus on the cases involving child custody, access and support, which are the most difficult.
3.1 The Creation of a "Loser Pays" System
Rules 246, 248, and 256 create a "loser pays" system in Ontario for the first time. This tactic on the part of the court system is intended to deter the loser (about 90% men) from exercising his civil right of access to justice. Case law on this issue runs contrary to the proposed new rules.
3.1.1 Presumption that Litigations are Frivolous
With regard to Rule 248, the Family Law Rules Commentary states:
"The philosophy behind this rule is that it is no longer in the public interest that parties to a family law dispute be allowed to litigate without the sobering prospect of some serious costs consequences."
The committee may as well have said, "Let them eat cake." The committee comment is wordier, but equally disconnected from the cruel realities faced by the governed. People seeking access to justice are desperate to the point of ultimate sobriety. Society has a definite, vital interest in helping them to achieve the most peaceable and just solution to the family crisis that circumstances allow. Perhaps people with a ruptured appendix should also have to face "the sobering prospect of some serious costs consequences."
3.1.2 Why Costs Should Not Be Awarded
There is no adequate explanation form the committee for the general abandonment of the current practice of the courts, which is not to award costs except where a party has behaved unreasonably.
With regard to Rule 246, the Family Law Rules Commentary states, in part:
"There is no logical basis for the anciently held view that costs must remain an incomplete recovery of expenses and there is no sound reason why a successful litigant should be denied compensation...."
This statement gives the best indication as to the mindset of the committee in abandoning the current practice, but the committee is wrong in the basic assertion that "there is no sound reason why a successful litigant should be denied compensation...."
Where there are children involved, the parties to a litigation generally have a strong belief that they are acting in the best interests of the children by offering themselves as the better choice for custodial parent. Good parents tend strongly to believe in their own superiority, and are unable to believe otherwise. Hence, failure to contest custody in court is an irresponsible act, and the parent is ethically forced to the contest, without any room for choice on his or her part. Parties should not be held liable for circumstances beyond their control. This idea is also reflected in the law which states that both parents have an equal opportunity to custody.
Even after the court has made a decision, the possibility remains that the non-custodial parent is, in fact, the more capable and valuable to the children. Refusal to do collateral damage to the unsuccessful party mitigates the damage that might be done by an incorrect judicial decision.
In many cases, the court's reasons for ruling indicate that the parents are equally capable to a very close approximation, and that the decision was not easy. It is clearly unfair to award costs to either party in such a case.
Access to justice is a powerful "sound reason," and it is treated in the next section.
3.1.3 Access to Justice
It has generally been held that findings of costs against unsuccessful litigants has the practical effect of destroying the person's access to justice. If the court creates a situation in which a party has no means left for taking otherwise insoluble matters to court, then a basic human right is denied. If a person is reduced to conducting his own case, as are many in the current climate of restricted access to legal aid and high legal costs, he may be coerced into dropping his case before it begins, because he would be ruined in the event that he should lose, no matter how closely run the case.
There will be many circumstances in which the child has no access to justice at a time of need, because the risk of unbearable costs prevents a parent from bringing a case to court in the interest of the child.
3.1.4 The Incentive to Litigate
If both parties were equally likely to win or lose their case, then the increased risks associated with paying the winner's costs would be borne equally, and would tend to make the parties find solutions other than litigation.
Given the current bias of the family courts, women have an incentive to litigate. Competent lawyers will confirm for them the widely-known fact that women are much more likely than men to succeed in matters of child custody and support. If women have the additional incentive that all of their costs will probably be recovered, it will increase the incentive to litigate and increase the number of actions and motions started by women. There is less incentive for women to seek more humane solutions outside the adversarial system.
3.1.5 Reducing the Burden on the Courts Without Punishing Litigants
The rules should enforce strict adherence to the case management timetable.
Interim and "interim interim" orders should deal with most of the features of final orders, including details of custody, access, and support, designed to withstand delay without repeated motions needed to refine the originally "temporary" order over time. This protects against any need for extra procedures when delay in the timetable does occur.
Judges are free within the current rules, and would continue to be free, to impose restrictions on motions, by refusing to hear motions filed too late for regular service, demanding that issues be grouped into fewer motions rather than spread out over time, and applying sanctions to the parties by applying costs summarily where litigants are clearly being frivolous or unreasonable.
Finally, elimination of the unjustifiable bias against men in matters of custody and support would enhance the incentive for the parties to negotiate a fair and workable settlement without the intervention of the court.
3.2 Tolerance of False Allegations
Current practices of the family courts tolerate and condone the use of false allegations of physical or sexual abuse.
3.2.1 Use of Ex Parte Orders
Courts grant ex parte orders on the strength of unsupported, often false affidavits. Rulings within ex parte orders are usually draconian, for example,
All of these tend to cause injury to children's emotional ties to the accused parent, and the symptoms of this damage can be used later as evidence that the accused parent has a strained relationship with the child. (Rulings based on this evidence tend to permit too little parent/child contact to permit the child's complete healing.) The child feels abandoned, and the accused parent is prevented (either by severance of access, or by conditions of supervision) from discussing the situation with the child, thus further injuring the child's emotional ties.
Contested hearings subsequent to ex parte orders often entrench harmful rulings by continuing them during assessments which can be stretched out for months or years.
Months into an assessment, the accuser parent can safely withdraw the accusation, with the damage to the child's emotional ties already advanced, and the advantage of an altered status quo already established.
Whether the accuser parent withdraws the false accusation or not, she (in the vast majority of cases, the mother) is not in danger of any practical penalty. The court does not weigh the accuser parent's willingness to damage the child's emotional security as an indication of parental unfitness.
3.2.2 Use of the Criminal Courts
Where the accuser parent brings her charge to the criminal courts, she enjoys the added benefit of being able to physically terrorize and humiliate the accused parent. The process of arrest, and a night or a weekend in jail are terrifying to most citizens, and it is difficult to draw the distinction between an unwanted body cavity search and anal rape. In most cases, the accused is not convicted, but goes away emotionally scarred, financially injured, and fearful of the accuser's power.
The civil process that accompanies the false allegation, already described in the preceding section, is enhanced for the accuser, but proceeds along the same basic lines.
Standards of proof are high in criminal matters, and the accuser parent is unlikely to be charged or convicted of a criminal offense as a result of making a false allegation.
3.2.3 Penalties for False Allegations
The rules should give guidance as to the civil liability that applies when the court finds that, on the balance of probability, the accuser parent knew, or should have known that the accusation was false. Civil liability should include provisions to cover
3.2.4 Mitigation of Damage Resulting from False Allegations
Ex parte orders should not have effect for longer than 48 or 72 hours.
Where severance or limitations on access have resulted from a false allegation, status quo should not be used as a criterion for judgment with regard to the accused parent's chance for custody.
The accuser parent should not be allowed to apply for custody until after a period of healing, found to be sufficient to repair any damage done to the parent/child relationship, and under the care of a therapist of the accused parent's choice and acceptable to the court.
3.3 Tolerance of Intentional Delay of Process to Create a "Status Quo"
It is a commonly-used, but unjust, tactic for a party to secure an interim or "interim interim" order for custody of a child, and then draw out all procedures in the process as long as possible, with the intention of establishing a status quo that the court will be loathe to break.
The rules should have provisions for deterring this tactic, such as
3.4 Tolerance of Abuse of Abbreviated Time for Service
Abbreviated time for service is an unfair tactic that the courts tend to allow all too frequently. Some lawyers are in the habit of filing late and serving with inadequate notice, and asking for leave to do so as the first item in a motion. The other party does not know whether leave will be granted, and must, therefore, incur the expense and suffer the distress of preparing inadequately in the limited time available, if any. This results in motions that cannot have an adequate response, and the rulings derived from them can set devastating precedents for the long term of the case.
It is particularly offensive to justice if a lawyer is allowed to use this tactic against a party who is appearing without a lawyer.
The new rules are improved in the sense that court staff are not allowed to accept late documents (Rule 18), but we are concerned that lawyers will simply ask for, and get, leave to file late in the course of a single visit to the court. The court should refuse to allow short time for service (except in very extraordinary circumstances), should maintain a record of representations made in support of a request for such leave, and should punish misrepresentation of circumstances by summary awards of costs (or by methods such as those listed in the next section).
3.5 Tolerance of False Statements in Affidavits, Testimony, or Argument
Where any person presenting information to the court can be shown on the balance of probabilities to have knowingly made a false statement in an affidavit, in testimony, or in argument, that person should be subject to fine, award of damages to opposing parties, and imprisonment, commensurate with the damage that would have been suffered if the falsehood had not been discovered.
3.6 Applications For Custody at a Remote, New "Home"
One unjust, but often-applied, tactic is for a party to move children to a remote new location, for the purpose of making it difficult for the opposing party to conduct his case. This tactic is clearly contrary to the best interests of children, but it is effective.
Rule 34(b) should call for the case to be started in the municipality where the child has customarily resided for the last six months, or, where such a place is not available, in the municipality that is most likely to feel familiar to the child.
Human Equality Action & Resource
2A The Market Place, East York, Ont. M4C 5M1
Phone (416) 410-4141
19 June 1997
Family Rules Committee,
c/o Roman Komar, Research Counsel
60 Queen Street, West
Toronto, Ontario M5H 2M4
C A N A D A
Re: Family Law Rules Consultation Draft
Dear Sir or Madam:
This is to supplement our letter of 28 April, 1997. As we mentioned in that letter, our organization has been tasked with a preliminary examination of the proposed new Family Law Rules, on behalf of the Ontario Wisdom Council, which is an affiliation of men’s, women’s, children’s, grandparent’s and family rights groups from central Southern Ontario (an updated list of associated organizations is appended).
We note with pleasure the Family Law Rules Committee’s willingness to receive further submissions, and we wish to add a comment on a problem with the proposed rules that we failed to discover in our initial examination.
Quoting Rule 216:
“COST OF CHILDREN’S LAWYER’S SERVICES
“216. The Children’s Lawyer may ask for costs in the same way as a party in the case and may, in the order for costs, recover the actual cost of the Children’s Lawyer’s investigation and report.”
Placing the litigants into a direct costs conflict with an agent of the Attorney General is manifestly unjust, in view of the enormous disparity in resources available to private citizens as compared to the Government of Ontario.
Regardless of which parent bears the burden of such costs, these costs are likely to be detrimental to the interests of children, since the risk of defaults in support would obviously increase, and the disposable resources of a parent would be diminished, so that they could not be used for the benefit of the children, as they often are now.
Like the rules that impose a “Loser Pays” system, this rule imposes an unbearable financial burden that tends to crush the citizen’s access to justice. We refer you to the commentary (appended in full) submitted in our April 28 letter, with regard to this issue (our sections 3.1.2 and 3.1.3).
Yours very truly,
Sent by FAX to: (416) 327-5256
[Snipped: "Ontario Wisdom Council, Communicating
[Snipped: copy of "Preliminary Comments Regarding The Consultation Draft Family Law Rules (1997)"]