Sunday, April 19, 2009

Toronto Star ~ Custody battle 'beyond tragic'

My comments sent to the Toronto Star in 4 packages due to the 1,000 character limit.

In any problem exercise one looks at the situation faced, makes certain assumptions does analysis and makes recommendations to resolve it. The antecedents to this dysfunctional outcome are an antiquated Family Law (FLAW) system. It is created by lawyers and passed by mostly lawyers in legislators. Advisory boards for changing laws are usually dominated by lawyers. Judges are former lawyers who have had feminist sensitivity training to ensure they make appropriate decisions. Is it any wonder why lawyers resist equal shared parenting as a presumption in law? That would reduce the adversarial relationship and potentially affect their pocket books.

In this case FLAW has reached a new low by pitting one parent against another with children and financial outcomes as the prize. Neither parent may be fit but we don’t know all the details so I’ll focus on systemic failures. If shared and equal parenting were the presumption both parents would have the children equally. The playing field is level at the start. That won’t resolve all the problems but if a parent tries to alienate children the system needs to catch it early through changes I propose.

Entitlements to female litigants under the current regime are an inducement to take unilateral action (66-70% of divorces are initiated by the female). Given there are no tests to get married society is encumbered with the aftermath of failed relationships. We need to be more proactive. These are steps required to get the job done better than now. First - compulsory counselling before lawyers are hired. All counselling would have an identifiable outcome. Reconciliation, further mitigating counselling of a more specialized nature or mediation. Counselling of children by professionals, not social workers. We currently spend $208,000,000.00 per year on women's issues alone in Ontario, none on men. Wouldn't it be useful to spend some money on "family" issues instead of one gender!

The next step would be mediation but this would be tax supported and compulsory if counselling does not get the warring parties properly focused, not including lawyers. Next if required, lawyers - if anyone can afford them. They are clearly pricing themselves out of the market and are becoming redundant for the average person. If no lawyers then the feuding couple need guidance on how to take the required steps to get to court which should be the last resort. No Fault divorce must end and all the perceived entitlements a female litigant will get including almost automatic custody and "ownership" of the children. This happens even if the female (or male as the case may be) has committed criminal acts affecting the livelihood of the other partner and ruined their career and reputation. To do this the divorce act must be changed to include a presumption of equal and shared parenting for fit parents. This gives judges no discretion which in 90% of cases they currently award or approve custody to the mother. Judges are currently part of the problem in addition to the pickpockets we call lawyers.

Dr. Jane Major presented a new paradigm at the recent Canadian Symposium on Parental Alienation Syndrome which is a very comprehensive look at Family Law from a veteran. It deserves a look. You can read the summary of her paper here as well as contact info.MJM


1997: Parents separate.

1999: Court grants mom custody. Dad has regular access.

January 2007: All three boys have moved in with dad after alleging abuse by mom. She claims they've been brainwashed and she's been cut out of their lives.

Nov. 6, 2008: The two youngest boys are ordered into controversial parental alienation treatment by Justice Francine Van Melle based on a social worker's comprehensive report pointing to evidence dad has alienated kids.

Nov. 12: Both boys taken to St. Joseph's Health Centre for assessment amid concerns they are refusing treatment and are a danger to themselves.

Dec. 11: St. Joseph's psychiatrist Dr. Nagi Ghabbour writes a report finding no evidence of a psychiatric disorder and expressing concerns about ongoing efforts to treat the boys for parental alienation and separate them from each other, the dad and Daniel.

Dec. 12: Justice Van Melle reconfirms need to get the boys treatment and prohibits Daniel and Dad from seeing siblings. Mom expressed concerns that Daniel had supervised visits with brothers at St. Joseph's and was acting as an "agent" of his father.

Dr. Ghabbour emails the Children's Aid Society, expressing fears for the boys' mental health if they are separated and forced to undergo parental alienation treatment. CAS puts boys in same foster home.

Dec. 19: Justice Van Melle makes clear at an emergency court hearing she is upset at the CAS action, which is in contravention of her earlier order to treat and separate the boys, but CAS intervention trumps all.

March 9, 2009: Daniel seeks standing in the case, a first step in claiming custody of brothers.

April 9: Daniel is granted standing in a written judgment by Justice Steven Clark, which his mother is now appealing.

Teen fighting for right to care for brothers speaks publicly on his family's 'warfare'
Apr 19, 2009 04:30 AM


The set of drums scattered in the back of his dad's van is a painful reminder for 18-year-old Daniel of how his family has been destroyed by divorce.

The Mississauga teen had hoped to start a band with his two younger brothers, who were both learning to play guitar. But by the time he was given the drums, his brothers had disappeared.

Jake, 12, and Max, 14, were ripped from Daniel's arms – crying for help – five months ago outside a Brampton courtroom in an alleged case of parental alienation that one veteran divorce lawyer describes as "beyond tragic."

They were committed to an adolescent psychiatric ward at St. Joseph's Health Centre for five weeks. Then they were seized by the Peel Children's Aid Society in mid-December. Since then, they have been in a Mississauga foster home, cut off from any contact with their older sibling and their battling parents. (None of the family members can be named under court order, and the boys' names have been altered for this story.)

Tomorrow, Daniel will be back in court, just short of his 19th birthday, seeking the right to see his brothers. He'll also be pushing ahead with his landmark case, seeking custody of Jake and Max in hopes of bringing an end to what he describes as family "warfare."

"I can't imagine going on in life without my brothers," says the soft-spoken Daniel, an articulate honour-roll student who works part-time at a grocery store and has put his hopes of studying visual arts on hold."We were close and I think all the going back and forth between our mom and our dad just brought us closer together. In fact, I've spent more time with them than our parents have. And I've seen and felt almost every single thing that's happened to them in their life."

This has become one of the most controversial cases of alleged parental alienation to be handled by the courts, with Daniel and his parents – along with a growing chorus of lawyers – questioning if a legal system set up to protect children in cases of high-conflict divorce has done more harm than good.

"From a children's rights perspective, it's horrific," says veteran family law lawyer Jeffery Wilson, who has now stepped in to represent Daniel. "The kids who have done nothing wrong were committed to a psychiatric ward and then to a foster home. Why? Because they loved one parent too much?"

The boys' mother alleges her sons were turned against her in a decade-long campaign by her ex-husband, with considerable help from Daniel. She describes the father as a "deadbeat" with a personality disorder who has used the boys to get social assistance and not have to work, she says.

But Daniel claims his mother was so physically and verbally abusive – investigators found her to be a good mom, but prone to yelling – that, by 2007, he and his brothers had moved in with their dad.

"How can we be close when I'm not there?" says Daniel, upset his brothers had no family at Christmas and Easter. "Obviously they can remember everything we've been through together. But they don't know that I'm trying to help them. And I doubt anyone is telling them that. They're probably losing hope, thinking that I've given up."

This is a heartbreaking tale backed up by boxes of legal documents, mental health evaluations and a comprehensive report by a social worker who interviewed the kids, the parents, teachers and many others, and recommended treatment for parental alienation.

Documents paint a picture of three lively boys who ended up in a homeless shelter for five months when their dad was evicted from his apartment, whose school work has suffered, whose friends have dwindled and who have become "flat," fearful and suspicious of the court system. That includes their mother and their government-funded counsel from the Office of the Children's Lawyer, who they maintain hasn't fought on their behalf. (That lawyer supported treatment.)

"My children need help," says their frantic mother, a community worker who lives in a pleasant bungalow, makes $80,000 a year and has spent more than $100,000 trying to get her boys back. She's "devastated" by how efforts to get the boys treatment, through a controversial U.S. program aimed at undoing parental alienation, has spiralled out of control. She says her boys need both parents but have become "the biggest victims."

While Daniel says his mother has only herself to blame for the fact the boys prefer living with their father, he's equally traumatized by what's happened to his siblings, who were taken from court Nov. 6 and driven to a hotel room for what some consider "deprogramming" by forensic psychologist Randy Rand, who runs the controversial Family Workshop for Alienated Children.

The treatment had to be abandoned after just a few hours because of the boys' fears (prompted by dad, the mother says) they would be turned into "zombies." That convinced Rand they suffered from "shared paranoid delusional disorder," making them a danger to themselves. Acting on a mental health order, police took the children to St. Joseph's a few days later, where doctors found no evidence of a psychiatric disorder but were so concerned about Rand and the mother's "rigid" and "dangerous" treatment of the boys, they contacted the CAS. On Dec. 12, Max and Jake were placed in a foster home and ordered to have no contact with family members.

The last time Daniel saw his brothers was in November at St. Joseph's when he took them their guitars, some of his paintings and "a ton of candy" during three supervised visits that clearly haunt him.

He's determined to win custody and, preferably, bring them back to live in their dad's bare-bones, $980-a-month apartment – where Daniel sleeps on a mattress on the floor. He hopes to collect welfare or sue his parents for support, although his dad hasn't worked in years.

Daniel knows his parents will never be able to spend time together, unless it's in a courtroom. But he's hoping, in time, all three boys can meet their mom for a burger, or a movie, as they did in the fall.

"Maybe it's naïve in a way, but I hope ... one day for my dad to drive my brothers to soccer and my mom to pick them up."

Letters to the Editor:

Custody system needs an overhaul
April 25, 2009

Re: Custody battle 'beyond tragic,' April 19

Your story illustrates in graphic terms how our family law encourages family warfare and hurts kids. If our courts, as is the case in Sweden, could simply presume that divorced parents are equal, there would be no prize to fight over.

Sole custody with child support, so often granted in Canada, is a great tool for revenge. Whichever parent does the best job of destroying the other's character in court, or who turns the kids against the other, wins the kids and a big chunk of the loser's salary for up to a couple of decades. How can a legal system that rewards slander and selfishness produce peace?

It would be wrong, however, to say that no one benefited from the family tragedy depicted in your story. As the article points out, the lawyer or lawyers representing the mother alone have already billed more than $100,000.

Eric T. Skelton, Barrie

Having been through an unexpected custody battle 15 years ago to defend my daughter's right and wishes to remain with me, I know the anguish felt by the teen fighting for his right to care for his brothers. I went through a fiasco created by so-called children's lawyers, unfeeling psychiatrists and a court system that has no clue how to deal with these issues. No one except one brave social worker (to whom the court refused to listen) agreed that children must have a say in determining their own future.

Robin Jones, Pickering

At what point is someone in power going to stand up and say, "Enough! Let's overhaul our very sick family court system already!"

I am a single mother of three, currently being accused of the charge-du-jour of angry ex-spouses – parental alienation. It scares me to death to watch story after story unfold, where seemingly happy and healthy kids are ripped from one parent to another because of a successful parental alienation case. Obviously some parents are alienators, but some are not, and we are not even asking what is really best for the children. Having my own kids battered around by this system, I can say with 100 per cent certainty that the phrase upon which this family court system was supposedly built is meaningless.

Politicians must overhaul this system. Some of the solutions are so obvious to those of us being bashed by it, like have one judge follow a family through an entire case. It is not brain surgery, but in the best interests of the children, someone better do something, fast.

Mara Cole, Toronto

Parental alienation is real and it is a pervasive cancer in society. If positive changes are to be made, we must first address the personality disorders and other mental health problems that are often the triggers for these high-conflict divorces.

Once a tornado hits, it's impossible to avoid its wrath. Screening for mental health issues before obtaining a marriage licence could spare thousands of families extreme custody battles that are "beyond tragic."

In reference to this particular case, nothing short of a restraining order with jail penalties could have enforced the court order against the alienating father. Who knows if that would have helped or exacerbated the situation. Those children and thousands like them will need therapy for years to come.

M.J. Marlowe, Thornhill

I just wanted to lend support to the family described in this article. We have known the family quite well, for a number of years, even before the marriage, and we would like to stress that we are very disappointed and saddened for the way this issue has been presented in the paper, but most importantly for the way this issue is being dealt with by our system. It is appalling to us that the Canadian judicial system has been working on this case for more than two years already and has been unable – for the sake of those children – to solve this tragic family problem sooner, and bring normalcy to the children's life.

In fact, it makes one wonder how those kids can adjust to a normal, loving life after such an ordeal – talks, assessments, hearings, interviews, and in November of 2008, the decision issued by the Superior Court of Justice granting, returning, the custody of the children to their mother.

Now this system is opening up this case yet again.

Ewa & George Karpowicz, Mississauga

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