30 August 2014

Life as a Family Law Lawyer: Malevolent instigator of conflict or thoughtful advocate of settlement?

Over the winter holidays last year, I happened to comment on a private member's bill, Bill C-560 tabled by Conservative MP Maurice Vellacott, that would have amended the Divorce Act to establish a rebuttable presumption of shared custody (the equal division of children's time between their separated parents). I said some nice things about the bill — it would replace "custody" and "access" with less adversarial, more child-centred language; it would require lawyers to discuss counselling, parenting coordination and arbitration with clients involved in parenting disputes; and, a parent would be required to give 30 days' notice before moving — but I also said that a one-size-fits-all presumption about custody is not in the best interests of every child and that, in my view, the presumption the bill called for was wrong-headed.

Over the next few weeks, after a reader posted a call to arms on a men's rights website, I received a surprisingly high volume of comments. Comments are great, don't get me wrong; I welcome debate, disagreement and discussion, and the more the merrier. However, a lot of these comments ducked the issues I'd raised about Bill C-560 and attacked me personally, and family lawyers in general, for opposing the bill. Here's a sampling:
· Surprise, surprise! A lawyer doesn't like this bill and has misrepresented it. How would you hold custody over opposing counsels head if this went through? It certainly will be hard to draw out, expensive and desperate fights if both parties are on equal footing, won't it? 
· Perhaps being a Family Law lawyer you are just used to presenting baseless assertions. 
· I read this in its entirety and its a blatent attack piece. Misrepresentation at its worst. By who else but a Family Law Lawyer. By the way this is the group who stand to lost the most if such an ammendment were to be made into law. Compensation cowboys, the scum of the earth. These liars makes the world a worse off place. 
· "However, from my perspective as a family law lawyer" In other words, from the perspective of an interested party, ie someone who has a keen interest in protecting your source of income.  
· "I act for men and for women and have no particular bias one way or the other" Meaning what, exactly? Does this mean that when you have a woman for a client you'll do everything to screw over her husband, and vice versa?  
· Looks like ol' JP and his cohorts here stand to lose a significant amount of income if equal parenting amendments pass. 
In other words, family law lawyers oppose sensible presumptions like the one proposed by Bill C-560 because we make our living provoking conflict between parents.

From my experience as a family law lawyer, this sort of argument is absolute rubbish, and I said as much in my replies to these comments. Here's what I said to the "interested party" fellow:
"I'm afraid you've got it wrong. I'm not an interested party, at least not in the sense you mean. I act for men and for women and have no particular bias one way or the other.  
"I'm also afraid that you are a bit mistaken [in] your assumption that family law lawyers drive conflict. Although some do to be sure, the vast majority of us, at least in Canada, are interested in obtaining just results as efficiently as possible. Who do you think is driving the increased use of mediation, collaborative settlement processes and other out of court solutions? In Canada it is lawyers. I and the vast majority of my colleagues are interested in achieving a reasonable settlement for our clients, not dragging things out through to trial.  
"Frankly, the profit motive you allege is irrelevant as well. Family law is a difficult, trying area of the law. If you choose to practice this area of the law, however, you find yourself drowning in work. When I was in active practice, I was referring two to five people a day out to other lawyers, not because I didn't like them or their problems, but because I simply couldn't take any more work. And trials, by the way, are extremely unpleasant. Twelve-hour days and working on weekends for the duration of a ten-day trial is no fun at all. It is horrible work."
This past July, I had the unique opportunity of sampling of the views of 167 judges and lawyers attending a national family law conference through a survey designed and organized with two prominent academics and the Canadian Research Institute for Law and the Family. Among other things, we asked a handful of questions about respondents' experiences with and opinions on shared parenting and shared custody, including this question:
Do you support enactment of legislation to amend the Divorce Act to create a presumption of equal care or residential time? Please explain.
To all those who believe that family law lawyers are unprincipled, unscrupulous, money-grubbing, conflict-fomenting vultures who provoke parenting disputes to line their own wallets regardless of the emotional, financial and social consequences to their clients, I present our respondents' replies to this question, edited to remove substantially similar comments in the vain hope of keeping this post to a reasonable length; my remarks continue afterward:
While the goal is laudable, I am concerned that many parents will get shared parenting on paper which will reduce their child support, and then not step up to the plate, leaving one of the parents with most if not all of the responsibility with much less income. 
There is a huge difference between saying that each parent will have parenting time, and then determining how much is appropriate, and saying that there should be a presumption of equal amount of time. ... The parenting time concept provides flexibility for the Court to determine what is in the child's best interest rather than taking away flexibility which a presumption would do.  
The current legislation is situation specific. Looking at each family situation specifically and tailoring the result to what works best for that family and situation is preferable to making one result for all situations. Parents can have a shared parenting arrangement if they so choose, it does not need to be legislated.  
Best interests test should always be the determinant of the issue, without a presumption.  
While not codified, there seems to be a presumption in law that mom will have the majority of care/residential time. There should be no presumption or at least an equal presumption.  Fathers are more involved this generation.  
Already many people presume that there should be equal parenting time and this would create a stronger platform for them, even when shared parenting may not be appropriate.  I believe that the court should still look at what is in the child's best interests.  A legislative presumption may make it too easy on judges to make a less detailed examination of the circumstances.  
It's not always in the children's best interests to have equal care.   
Yes, maybe. It might help reduce those files ... where parties are very entrenched about parenting time right out of the gate.  Stereotypically, moms think "I've been the one at home, so dad can't do it by himself" rather than think "yeah, dad can step up to the plate and take a more active role and wouldn't that be beneficial for the children going through this difficult transition". Both parties need to change their roles, moms need to reduce parenting time and increase employment efforts and dads may need to reduce employment efforts so that they can increase parenting time.  If it's the presumption of shared time then perhaps the parties will start there and then figure out logistically how close to shared can they can actually achieve month to month.  
It is preferable to avoid any presumption around parenting, families are unique and should be treated that way.  
We aren't there yet as a society. In my experience, the majority of custody cases are not "shared custody" cases  
I think it would take a lot of the heat out of family law disputes if there was a presumption of equal parenting. it may also smooth out the often unequal balance between parents created by different personalities or parenting styles which disadvantage, for example, a parent that disciplines. I think it would counter the move to involve children more in parenting disputes with the increasing use of lawyers to represent them.  
The test is and should be best interest of the children, considering what their experience with each parent has been prior to separation, how available and capable each parent is to provide full care after separation, and the needs of the children.  There should be no presumption of equal care or residential time but a careful analysis of the family system and dynamics focusing on what is best for the children. I think litigating for shared parenting is an oxymoron!  
the best interests of the children is still a good test and provides the flexibility that the court needs in individual cases  
I believe this could cause problems.  However, I would not be opposed to a presumption of "Joint Custody" understood as joint Guardianship and entitlement to decision-making and whatever degree of assuming rights and responsibilities of parenting.    Shared Parenting in the sense of some form of 50/50 residential care and control can not really be assumed since it is not always reasonable, viable, etc.  
Some child care experts argue that shared parenting isn't always in child's best interest. Sometimes better to have one place they call home with consistency  
it is appropriate to make parenting arrangements based on what is best for each particular family.  Beginning with a presumption of equal residential care means moving away from that standard  
Both parents should be responsible for the care of the children and have the opportunity for the children to reside with them  
This presumption is not in line with the best interests of the children in all cases.  A detailed examination of the parenting situation is the best method of determining the best parenting arrangement.  No presumptions ought to be in place, either in favour of shared parenting or otherwise.  If there is a genuine concern that not enough cases are resolved by way of shared parenting, this ought to be addressed through education of the bench and bar regarding the situations in which shared parenting is appropriate.  
Presumptions are not particularly useful. They promote positional stances that do not assist parents to craft a post separation parenting regime will be best for their child or children. Unless there is a good reason for it, and it is handled such that transitions are seamless and conflict free, shared parenting places too much unnecessary stress on children. I am not sure I as an adult could stand or thrive living in two different households for whatever period of time, be it week to week or two weeks and two weeks or the absolute worst; let's move every 3 and 4 days to satisfy the adults. This brings living out of a suitcase to a whole new level.  
I do, however, the simple notion of such a presumption may not work well in practice.  While it may be "presumed" I have seen numerous situations where same is nothing but a sham designed to affect support.  The interests of the children in NUMEROUS cases are secondary at best.  
In many situations equal care or residential time is not in the best interest of the child. Further, what age does this start at? There are studies that show equal care or residential time negatively affects a child's development.  
I believe that the parenting arrangements should simply be looking at the children's situation, and the parents' situation, and determining from there the best schedule.  Many intact families don't work based on each parent spending 50% of their time with the children, so why would it be appropriate to have parents after separation be presumed to share parenting when they likely haven't done so while intact?  
It would be a terrible mistake as the experience in California has shown. Each case is different and must be evaluated  
Presumptions have no place in the formulation of the best interests of the child.  This is fact dependent and should be based on a holistic view and the unique factual circumstances implicit within the determination.  
The focus needs to remain on the children in each particular case, and what is in their best interest.  It should not be presumed that it is in a child's best interest to transition to a new residence every few days.  If the goal is co-parenting (which does not require shared parenting or joint custody or equal time), there needs to be educational programs provided to give parents the tools they need to cooperatively parent post-separation, alternative dispute resolution services available, readily available and affordable parenting coordination, and mental health support/counseling services available.  
This is a step backwards from a child centred test to a focus on parental rights. Children are not property. Parents need to focus on their "responsibility" to meet children's needs, not their "right" to parent.   
I’m  not certain about this; a STARTING POINT, maybe, but it can create problems for  people in abusive relationships to have the burden of rebutting a presumption  
simply does not reflect reality, and would lead to endless litigation  
This will simply cause more litigation - if the parties can agree or there is a past practice of a shared physical parenting regime the court will order this or the parties will agree  
Not all cases deserve that presumption, where there has been abuse or an incapable parent or not in child's best interests   
An equal care presumption could be dangerous in certain circumstances. I believe it is more prudent to protect children who may be in a dangerous situation from the outset.  
qualified yes - as long as the best interests of the child prevail  
The focus must remain on what is in the best interests of the individual children. It is also my understanding from recent social science literature that children are not doing as well in so-called '50/50' arrangements as was hoped.  
The premise is admirable but not necessarily in the best interests of the children.  
in situations where parties were in the same home sharing the responsibilities I think there ought to be an examination of whether the parties were active parents before an assumption is made that just because they lived in the same home they should share equally in parenting time and responsibilities   
I think every child is different.  Some children do not function well in this type of schedule, and it would lead to substantially more litigation, in my opinion, if we had to start with that presumption.  As well, there continue to be a number of parents who cannot or should not have that type of parenting responsibility.  While there would certainly be situations in which it would be helpful, I think that more often than not, it would make things harder.  I also think that for those parents who truly are not able to be an equal parent, either due to their scheduling, or their abilities, it would create a negative stigma on those parents to give "primary care" to the other parent.  
There should be a rebuttable presumption. It would lead to more settlements  
This will help to eliminate the preliminary skirmishing upon breakdown of the relationship, which often involves causing false criminal allegations to be made.   
This is unrealistic for many people; it's an ideal, but not realistic for working class families tied to specific work schedules. There ought to be no presumption in any particular direction, in my opinion.  
Based on the social science literature I have read and my own anecdotal experience, I think that most children need a primary care giver and a "home base" when children are of a young age.  Too often my clients tell me that their children tell them they need to spend equal time with both parents because it is "fair".  I think that is putting the priorities of the parents ahead of the needs of the children.  
I am not a fan of presumptions.  Each case is unique and should be determined that way.  I see many parents, usually fathers, seeking shared parenting to reduce support obligations and this type of presumption could make that easier without properly considering the best interests of the children.  
Children should benefit from an equal relationship from both parents unless circumstances require otherwise  
Maximum time as is in the interests of child is preferable, because it recognizes that not all children do well going back and forth between two homes.  The week on/week off works for some, but for other children it causes a great deal of stress to not have a home base, to only be able to see friends in alternate weeks. It only works where the parents are able to look at the child's schedule, interests, etc., and allow her/him to have the same life in both homes.  
I don't think legislated presumptions are helpful, particularly if the focus of the enquiry is the best interests of the children.  
Given the unique circumstances of families and children, a presumption where children are involved is in my opinion not appropriate.  
the presumption the mother is the more suitable parent no longer applies  
the concept or philosophy of "equal" time can be achieved in many ways, some of which do not mean equal physical shared time.  It sometimes does not make sense to be trying to "equally" share 24 hours.  However, with such a presumption, conflict between the parties is immediately ignited as most lay persons see equal as being "alternating" weeks or "alternating" days.  Lawyers and professionals and judges should be creative enough to look at different ways of achieving "equal" or other residential arrangements that maximize contact and, frankly, are more in keeping with what the parents actually want or can manage.  
It removes an element of fighting.  
It is often not in the best interest of the child especially when the children are very young. ... This equal care is more about the parental rights and less about what is in the best interest of the child. Let’s use the premise of best interest of the child to determine parental time and not start with the premise that both parents should have equal time.  
I strongly oppose any departure from the best interests test.  Without this there would be an even stronger wholesale drive to parallel parenting which is not generally a particularly desirable structure for raising a child.  
There should be no consideration of anything but the individual child's best interests. Shifting to a presumption changes the focus from the rights of the children to the rights of the parent. 
The majority of families before divorce continue to be "traditional" with one parent doing most of the child care. I think it is bad for kids to be forced to spend even close to equal time with a parent who is ill-equipped to look after them properly.   
A presumption of equal care would not be a child centred approach and such a presumption would mean upheaval for children in circumstances in which children are already experiencing increased stress and anxiety.   
I don't think we can improve on the "best interest" test. Many families, when left to order their own affairs, do so in a way that has the children spend more time with one parent than another pre-separation. Why force the children into an artificial arrangement just because one parent wants to divide children the same way as we divide property?  
I act for many women who have been in relationships in which there has been domestic violence. For many of them an incident or incidents of domestic violence have been the reason for the breakdown of the marriage ... They are often disadvantaged at the time of attempting to negotiate the terms of care and residential time regarding their children both emotionally, financially and terms of power dynamics. Many are not in an emotional or economic situation to rebut a presumption of equal care or residential time even if it would be against the best interests of their children.  They neither have the means nor emotional energy to pursue litigation to rebut such a presumption. In these cases it would be detrimental to both mothers and their children for such a presumption to exist.  I have seen situations in my practise where an agreement to joint custody and guardianship has been used as a vehicle for harassment and control.  
It may reduce the importance of "status quo" immediately after separation which can cause fights  
It would create more litigation to overturn the presumption.  the Child Support guidelines have already created more litigious attitudes because of the effect of shared parenting on support.  
It is inaccurate in most circumstances.  One parent, still primarily the woman (but that is changing somewhat) assumes the bulk of the parenting responsibilities.  It will place women who are trying to leave situations of domestic violence in an even more vulnerable position than that which they already face when trying to end such relationships.  I also have concerns that we are confusing time with children as the basis of parenting.  While this is a core concept time share is not shared parenting.   Again I see women entering shared parenting regimes in which they take less child support (that they need), no spousal support because they won't litigate for themselves, and then continue to bear all the parenting responsibilities while the children are living an unstructured life that is prone to manipulation and increased conflict.  
this is what people want as many dads especially miss out on an opportunity for shared custody simply because they moved out of the family home and created a status quo of primary care to mom.  
Best interests of the children should always be the sole consideration.  It should not be an uphill battle for a parent to seek to have primary care when his or her ex is not a suitable parent.  
There should be no presumption it needs to be reviewed on a case by case basis. Leaves too much room for the bullies in the relationship to dominate (i.e. using the presumption because they know the weaker person will not fight)  
That has little to do with the best interest of the child which I believe is still the proper focus for the court. It also raises a support issue of significant concern in many cases.  
All families are different.  The presumption should be to the status quo of how children were parented during the marriage.  The goal is to focus on the children and their needs not to create a presumption of "equal division".  
I am wary of presumptions, and the prospect that that will reduce the scrutiny  and attention paid to this important issue.  
children have a right to equal access to each parent  
There should be no presumptive distribution of parenting time, whether shared or anything else. A one-size-fits-all approach will work well for some children but be disastrous for others; plus the potential for extremely adverse outcomes on initial chambers applications is extraordinary.   
Equal time with both parents is disruptive to the routine of young children and I find most parents who are wanting equal time are doing it to get out of paying the full amount of child support and to control the other ex-spouse.  Older children (13 and older) have a better ability to decide if they want to spend equal time with both parents.  Young children need the stability of having one home, with one set of rules.  
While I realize that hashing it out in court is not good for children, that presumption could have a chilling effect on claims for primary residence or unequal care regimes even where that is in the best interests of the child, particularly where the opposing parent is more domineering or litigious.   
I think that each case needs to be addressed on its own merits with the assistance of third parties where necessary.  I worked as a representative for children for 18 years.  The issue that came up time and time again was that while the children often wanted to be with both parents, the children wanted to have a "home base".  This is a very difficult issue which needs addressing.  The sharing of the children has to be as much about what is best for them and not so much what the parents think is best for the parents.  If the relationship between the parents will foster and improve the children's development and lives then that is an ideal case for shared parenting.  But more often than not, the issue is more about power and control than it is the child's best interests.  
It does not take into consideration the development of the various age groups. It seems that the legislator is more worried about the parent`s rights than what is in the best interest of the children. We are now having discussions as to what is appropriate for an infant and a toddler and it seems that it is imperative to their development that they be mainly with one parent as to form an attachment. Shuttling back and forth is not the answer.  
This will inevitably have the result that some women will bargain away their financial rights in order to maintain a pre-existing primary care 
Absurd idea...one "size" does not fit "all"...in addition that approach does not take into account the unique circumstances of each family and that family's children.  
our Judges already take the maximum contact factor very seriously and I believe if a presumption is created we will have impractical results and the power struggles will just find another forum 
pre-separation, mothers are still the main care giver.  Why change the dynamic for the child?   In my experience many fathers want 50% of the time and no responsibility. E.g.  Who books medical and dental appts.  Who does the leg work of finding the child care.   Equal residential time does not reflect reality for the child.  
Subject always to the best interests of the children, this should be the presumption     
In many families one parent is the principal parent and this often does not change in a divorce; child should have a right to the parenting he is used to.  
this presumes that both parents are capable and interested in parenting on an equal basis. We know from many significant reports and studies that even in shared parenting arrangements the mother continues to take on all of the primary parenting tasks - doing so most often with a reduction in child support.  
This is not always in the best interest of young children; difficult in high conflict cases and in cases where there is domestic violence.
This struck me as an interesting, and telling, range of comments. What I took away from reading these remarks is that, regardless of respondents' position on the shared custody proposal, the lawyers and judges we surveyed generally:
  • put the interests and needs of children before the interests of their parents;
  • placed a high value on the settlement of parenting disputes;
  • sought to defuse conflict and viewed litigation as a last resort;
  • demonstrated an awareness of the traditional and changing roles of mothers and fathers, and of the impact of family violence on parenting; 
  • supported shared custody when best for the children; and,
  • had given serious and considered thought to the merit of a presumption of shared custody and its implications for their clients.
I have always been tremendously proud to practice as a family law lawyer, and always felt terribly privileged to work with colleagues who were so highly ethical, principled and skilled in an area of practice that is demanding at its easiest and horribly fraught at its worst. The claim that family law lawyers are liars who exploit conflict for profit is insulting, juvenile and, as the answers to our survey suggest, baseless.

(I reiterate that the above is not a complete statement of the responses received to this open-ended, qualitative question, and should not be relied upon for analytical purposes. Not all respondents provided comments, and not all of the comments received have been reproduced. However, for those interested in the results of our survey, 77.4% supported changing the language used by the Divorce Act to address post-separation parenting to something along the lines of "parenting time," "parenting arrangements" or "parental responsibilities," and 23.2% opposed amending the Divorce Act to impose a rebuttable presumption of shared custody. Respondents also said that about 40 to 45% of their cases are resolved with an agreement or order for shared custody, and that about 75 to 90% of their cases resolve with both parents being responsible for making parenting decisions. A more complete report on the results of the survey will be published by the Canadian Research Institute for Law and the Family by the end of October 2014.)

2 comments:

  1. This is a very interesting and useful collection of views from lawyers and judges and reveals a lot of their views. Surveys of parents and the public show views that the large majority (about 80%) believe that the adversarial legal system is a large part of the problem. So we have two solitudes with diametrical views. The legal profession won't meet or collaborate with parent advocates and family law reformers to develop changes to law and practice. No doubt most legal professionals are well intentioned, hard working and intelligent. But that does not mean that they are not part of a system doing some pretty evil things. Let us ask some tough questions: if the claimed figures are so high for joint custody, then why is the percentage of child support paid by women remained unchanged at less than 1%? And if legal professionals are so focused on the interests of children, why do they only mention the wants of women and portray abuse as though it does not happen to children or to men? And why does the percentage of parenting done by men, 35-50% in intact families, drop to less than 10% post court-imposed "agreements". And why do the bar associations oppose any presumption if less than 1/4 of those surveyed oppose it?

    ReplyDelete
    Replies
    1. Thank you very much for your thoughtful comments. I'm going to reply to your email, but it is not my intention to get into a debate on this subject.

      I have no idea whether the "legal profession" will or won't meet with "parent advocates," by which I assume you mean fathers' rights advocates. You might try seeking a meeting with the Canadian Bar Association or your province's law society. Since law societies' business concerns regulating the practice of law, you'll likely get further with the CBA.

      Speaking for myself, however, this is not an issue concerning advocates and lobby groups; it's an issue of social science and children's best interests. A lobbyist, no matter how well intentioned, is not going to convince me that the earth is flat.

      I reject the notion that our legal system "does some pretty evil things." In general, if you lose your case it's not because the judge or the system is evil, it's because your case wasn't as good as the other person's case. If the judge made a mistake, you can appeal the decision and correct the mistake. And if you don't like that decision, some of the time you can appeal your appeal as well. However, although losing your case might make you annoyed and sad, it doesn't mean that our justice system does "evil things."

      As for your "tough questions," I'm afraid they're not.

      A small minority of women pay child support because the social reality in Canada is that the majority of stay-at-home parents are women, and parenting arrangements after separation often mimic the parenting arrangements established by the parents prior to separation. There are other factors, of course, such as the fact that women are underpaid in the workforce relative to men, that men and women continue to be socialized to have different career and family expectations, that women can lactate and men can't and so forth, but being the at home caregiver seems to me to be the most prevalent explanation.

      Yes, legal professionals are focussed on the needs of children, but that doesn't mean that we are blind to reality. It is certainly the case that women inflict abuse on men and on children. And when that is a factor, our approaches reflect that factor, as do the nature of the parenting arrangements that are best for the children. However, if you must take a general approach rather than taking one family at a time, the reality of domestic violence is that most of the violence is committed by men and that most of the victims of that violence are women. Pointing to the small number of men who are abused doesn't change this fact.

      I also reject your claim that men parent 30 to 35% of the time and then parent 10% of the time after separation. Sure, it's like that with some families, I have no doubt. But the arrangements that are best for each family are determined according to the needs and circumstances of each family. Lots of men are primary caregivers, though they are the minority compared to women, and have their children for most of the time. Lots of families share their children's time equally or almost equally after separation. Both of these family arrangements are becoming increasingly common. Each family is different, and there is no presumption that men should only have 10% of their children's time. The majority of lawyers are not just against presumptions of shared custody, but against all presumptions.

      And as to the bar associations, the statistics we collected showed that about 75% of judges and lawyers would agree to amending the language in the Divorce Act to use less conflictual, less rights-based terminology. However, 75% also opposed amending the Divorce Act to create a presumption of shared custody.

      Thank you again for your comments.

      Delete