Monday, February 9, 2009

Judge Harvey Brownstone has advice for those facing child custody fights.

The Toronto Star

Family
court judge's book a caution to warring couples
MICHAEL STUPARYK/TORONTO STAR
Judge Harvey Brownstone has advice for those facing child custody fights.

'This is not Judge Judy,' Harvey Brownstone tells self-litigators who clog divorce courts
Feb 07, 2009 04:30 AM
Susan Pigg
LIVING REPORTER

Ontario'sfamily courts are being "crippled" by warring couples who are representing themselves in complex divorce cases – including bitter battles over child custody, a long-time judge says.
"The family court system is in crisis with unrepresented people who don't have a clue what they are doing. They don't understand that this is not Judge Judy,"says Justice Harvey Brownstone in a candid assessment of the courtsystem that handles separations, division of assets and custody issuesin Ontario.

In some courts, 50 to 70 per cent of couples aregoing it alone with no understanding of family law, rules of evidence or even what documents they need to make their case, he says. Most saythey don't need, or can't afford, lawyers. The resulting delays and adjournments are further overloading a system that's already being"swamped" with increasingly complex, and often acrimonious, court fights that are destroying children's lives, says Brownstone, 52, a well-respected Ontario Court of Justice judge.

Brownstone is so concerned about the number of lives affected by couples using the courts to try to extract "vengeance," when what they really need is counselling, that he's the first family law judge to write a book, dueto hit bookstores later this month.

Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court isn'tso much a self-help book as a warning to warring couples – including the growing number of complex cases stemming from common-law, same-sex and casual-sex relationships that result in costly legal fights oversupport obligations.

Brownstone's book sets out a number of"alternative dispute resolutions" – from collaborative practice to mediation and binding arbitration – aimed at helping families reach agreements out of court.

"The whole message of this book is that family court is bad for families and litigation is bad for children.That's what people need to know," says Brownstone, a family court judge for 14 years.
Most senior divorce lawyers agree and say familycourts are so short of judges in high-growth areas such as Newmarket, Brampton and Barrie, they avoid taking cases there.
Veteran divorce lawyer Harold Niman describes Newmarket's family court as"chronically overburdened," with dockets that often have 25 to 40 or more cases, well above what's considered a reasonable load. One court last week had 28 scheduled cases, all of them listed as unrepresented litigants.

"It is shocking," says Niman. "People are expecting to go have their case, their life, determined by a judge who's going to have the time to read the material and give the case the kind of attention that they feel they deserve. That's not going to happen. It's a huge disappointment to (divorcing couples) to find that out. And the judges, who are very hardworking, are very open about it. They lament it and they try to do the best they can."

That's left people like Ari Katz, whose contentious divorce was supposed to go to trial in October of 2007, still awaiting a final decision on division of assets and support payments. He now has a new trial date in May, but no guarantee it will go ahead as planned.

He's already racked up$105,000 in legal fees. When his lawyer asked for a $100,000 retainer for next May's trial, he realized, "I have no choice but to represent myself."

The Ontario government is moving to reform family law legislation and courts to simplify the process and cut costs for litigants, and has been pressing Ottawa, which is responsible for appointing judges, to deal with the "shortage," says a spokesperson for the Ministry of the Attorney-General.

Ottawa recently appointed six new judges to the Superior Court of Justice, including two in Brampton and one in Barrie, he says. And Family Law Information Centres in many courthouses in Ontario try to help separating couples manoeuvre through the system and look at alternatives, including mediation.

While the system isn't as severely backlogged in Toronto – where more couples are looking to alternatives, such as collaboration and mediation –there are other serious problems, and they're playing out in family courts across the province, divorce experts say.

"There are a lot of people out there in pain and they come here thinking it will get better," says Brownstone. "But there's no winning in family court –there are only degrees of losing. People get that when they come here, but it's too late by then."

In some cases, the court must deal with "recreational litigants" – parents who literally fight until the children are grown up.

Which is part of the reason Brownstone is donating all the proceeds of his$19.95 book to the Children's Wish Foundation, which helps children facing life-threatening disease. "I want parents who are fighting over Halloween access and Christmas vacations – who've lost sight of the big picture – to know that there are other parents out there who won't even have the privilege to see their children graduate.

"It breaks my heart that some parents are planning funerals for their children while others are fighting over who gets to take the kids trick or treating."

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- Paying The Price -

Fundamentallythe entire system is flawed... When you consider that the children in adivorce become monetary value, given child support orders It’s nowonder child custody can become a matter of financial survival foreither party... Divorce is never about the children... it’s about themoney...
Submitted by Integra at 12:37 AM Monday, February 09 2009

Spouses who won't negotiate

Divorceis a highly emotional, stressful process. There is a sense of "justice"on either side that will cost anyone a fortune going the court route totry to get. I myself tried collaborative law, mediation and now have toresort to court because my ex spouse refuses to negotiate further orpay support. He has kept me financially "hostage" for three years. Wecannot stand each other and do not speak accept through lawyers at ahigh price tag. He feels counseling is "useless mumbo jumbo". Ourchildren have been affected despite my best efforts to shelter themfrom the disputes. When you cannot negotiate with a narcarsistic,control freak, what choice do you have? I am 100k in debt with thelawyers with no resolution. To me court was to be the last resort butin this case maybe should have been my first resort to save me thethree years of torture. Frankly, the whole system is broken Lawyers,court, ,the law and whole process. There has got be be a better way!
Submitted by toolate at 8:21 PM Sunday, February 08 2009

Not the lawyer's fault

I'vebeen reading most of these articles about the family law system and onething that people fail to realize is that if lawyers are ever going topay back their loans from law school, they have to charge high rates.Yes they pay them back 5-10 years, but nobody else decreases theirsalary once their debt is paid, why should lawyers? And if mostdivorcing couples had spent time during their marriage preventing theproblems that lead to divorce, eg) through counselling, then maybe theywouldn't need a lawyer. Stop blaming everybody but yourselves.
Submitted by adb215 at 7:35 PM Sunday, February 08 2009

Fix the system not people

Governmentand lawyers are beneficiaries of the family justice system, distortedto such a degree, that it promotes hidden agenda and interest of itssponsors on expense of parents and children. What we see in thecourtrooms, the senseless fights and suffering, is not nature of thepeople (although is simpler to say that) but behavior encouraged by thefailed policies. If you provide tools and environment, people will tryto exploit them for their own benefit. Lawyers play a role offacilitators in that labyrinth – the bigger the labyrinth the biggerthe payoff. While mediation may help crowded courts (and increasepayoff to the lawyers), unless system is changed there will be nobenefit to the families and children. Fighting will move from courts tolawyer offices – and sense of despair and injustice would continue topoison lives of many people.
Submitted by DHD at 11:55 AM Sunday, February 08 2009

adults..

alotof these comments assume that the two people going through the divorceare mature and logical divorce. I am sure we all know of those adutlsout there that once they are faced with serious issues concerning theirchildren, they act out irrationally and defencively. This puts extremepressure on the other parties, and ultimately the children involved. Aswe know, not all divorces and cutody battles are smooth, so we need theguidance of lawyers to get through all the crap.
Submitted by snotina at 11:03 AM Sunday, February 08 2009

One small law will change it all...

Ihave often witnessed what happens in divorces when adults are unable totrust one and other. I have seen hundreds of thousands of dollars spenton one simple divorce, for a contract that means nothing, unless ofcourse the poorer spouse has the money to keep going back to court toget what is rightfully and previously agreed to, theirs to begin with.The Government needs to stop listening to the lawyers and startimplimenting common sense by bringing into law that couples enteringinto a seperation or divorce agreement must attend mandatorycounselling for each spouse, followed by mediation. We have the lawsregarding Seperations and Divorces, we just need to use them. Thisenables everyone to be on the same playing field and negates those thathave the money from having the power.
Submitted by brianstake at 9:57 AM Sunday, February 08 2009

Garden of Eden

I know of one couple who did not go to court but amicably settled theircustody and support issues with assistance from lawyers, everything wasdone efficiently and without fanfare. Did this solve the issues?Decades later the children remained angry about their parent's failedrelationship and the ex-wife died smiling only because she endured astroke that removed her memory. Love is a battlefield that has beenclaiming victims since the Garden of Eden. There is no "good"solution", only attempts at making peace. And for better of for worse,generations carry the memories of the battle forward ...
Submitted by js1 at 9:08 PM Saturday, February 07 2009

It May Not Be Judge Judy-But It Should Also Not Be Bankruptcy To Go Through Courts And Lawyers!!!

Thesystem is totally broken and a Corporation of plumbers cannot fix thismess. Too many lawyers and courts in the bedrooms of the public.Especially when ass ets are involved. Is it really about the childrenor assets???
Submitted by The Truth Hurts at 8:43 PM Saturday, February 07 2009

Children do not need to live the acrimonious life of parents life

Itwould be much healthier to remove children from divorcing parents andto trust them to a barding school, where parental visits would beproperly assigned and controlled. Both parents can then go to work andsupport themselves and the children. This would minimize spousalsupport and introduce fairness in child support. You would eliminatethe parasitization of one parent on the other. It would be a muchhealthier situation all around.
Submitted by Henri Murger at 3:53 PM Saturday, February 07 2009

Lawyers cost

Noone can afford lawyers. Why would anyone with a total of 50K in assetsto be split go to a lawyer that wants 100K up front to represent them.Yet judges always want lawyers in front of them, in any court, not onlyfor divorce. Using the same analogy, only pilots could fly aspassengers on a plane because they are the only ones who know how itworks, only engineers could drive on a road, and only IT professionalswould be allowed to use computers.
Submitted by FredW at 3:05 PM Saturday, February 07 2009

The Child's interests are paramount

Nomatter what issues face the partners' relationship. The legal system isset up to be adversarial, however in my opinion this is the wrongapproach. Negotiation and mediation should carry the day in family law.
Submitted by proudcanadiancitizen at 1:43 PM Saturday, February 07 2009

The lawyers are the problem...

Ourlegal system has been a total failure. It will never be remedied untilit is gutted of its inner rot ... the lawyer. Lawyers are not needed.They are a vicious element who render the process lengthier, craftier,adversarial and of course more expensive. I have seen lawyers who areabject failures and still charge 400-500/hr! Unconscionable. Even thestamp used in their mail is charged. So is their taxi ride to court!What is needed are judges who can study a case and render judgement.All the information can be requested by the judge or his assistants.Lawyers are the stumbling block who fan the fires of hatred betweenparting parents letting children bear the brunt of the unfortunateanimosity.
Submitted by Henri Murger at 1:11 PM Saturday, February 07 2009

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