Hard lessons from family court
Experience, they say, is the best teacher; which is as true in law as in any other profession. The most significant nuggets of jurisprudence that I carry around weren't from my professors at Ludlow Hall (UNB Law School), but came from clients over the past 15 years of practice. Clients who, for the most part, had never been to law school or who have viewed the insides of a court room. Nonetheless, the life lessons they passed on from their experiences before the courts say a lot about our society and about our legal system as well.
*The Lovin' Wears Thin When the Bills Come In.
Canadian family courts are usually asked to deal with three issues when conflict develops between couples; the division of marital property, support, and custody/access of children. These are the crux of any family law practice. Each issue unto itself is usually emotionally charged and the process often, regrettably, becomes highly adversarial. When costs and fees and "who is left with what" are added into the process, a full War of the Roses scenario begins.
*She who Represents Herself May Have a Fool for a Lawyer, but Certainly has a Con for a Client.
Court proceedings take time and time costs money. Because access to justice is not cheap, parties often end up in court unrepresented by counsel. The "per ses," as they are often called, show up and require extra time and assistance, often from the presiding judge. The other party, who is represented by counsel, ends up footing his or her lawyer's bill as the clock ticks away. In truth, the cost of seeking effective, expeditious justice becomes one long drawn-out debt drain.
*Parents Often End Up Hating Each Other More Than Loving Their Children.
If there is beacon of brightness in the practice of family law, it is the notion of the "best interests of the child." It is a concept created by common law and adopted into statute (in New Brunswick, the Family Services Act). Combating parents often confuse their own rights and grievances for those of their children. It is the court's foremost obligation to protect "the best interests of the child."
*You Cannot Force a Parent to Love or Protect a Child.
Each year the New Brunswick Department of Social Development faces a growing number of files where children are placed in the care or custody of the Department, owing to suspicions of neglect or abuse. What ensues, if the Department is seeking a guardianship order (termination of the parent's custody), can be a long, drawn-out court battle where the child's fate can remain in limbo for upwards of two years.
The intersection between legal delays and ever-burdening files for social workers makes the possibility of future "Jacqueline Brewer" cases more likely, not less.
Gaining access to justice and legal counsel in New Brunswick is no small feat. Contested divorces are now on waiting lists for up to a year. Child protection matters are regularly adjourned and minor children are left in limbo until their fate is determined (often months, if not years, after the action is commenced). Individuals with no legal training or experience end up representing themselves in courts, where "form over substance" is becoming more and more common. Divorces, custodial disputes, and adoptions are placed on hold until the proper forms are filed.
Enter Mr. Justice Raymond Guerette and his Task Force on Family Law Reform. The commission, chaired by the well-respected former Saint John family court justice and a group of renowned family law practitioners, was formed this past year, to investigate and report on what ails New Brunswick family law. It is by no means a small undertaking or an easy task.
Over the past month, the commission has been traveling the province listening to social workers, court staff and lawyers express their frustrations with the mechanics of the present system. However, more significantly, the committee is charged with making recommendations which will alter a court system that seems destined for outright dysfunction.
There seems little doubt that when the final report comes out this fall (there will be an interim report in the summer), it will be welcomed by all. For this, the Graham government deserves partial congratulations for calling for the report.
However, beyond the report, there needs to be a commitment by the government to put the committee's recommendations into effect, lest it become another doorstopper like the PSE report (and a few others). It must be acted upon quickly and decisively.
To paraphrase one of my knowledgeable clients, the need to reform "mustn't grow thin when the bills start comin' in." The costs of reforming the family court structure will be great. The costs of ignoring the committee's recommendations will be even greater.
Lisa Keenan of Saint John is a lawyer and the former president of the New Brunswick Progressive Conservative Party. Her column appears on Friday.
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