We've Learned Nothing Since King Solomon's Day: The Tragedy of Family Court

Can we talk about family court for a second? If you are a single parent or know a single parent chances are you have heard some horror stories about family court. Family court is extremely stressful, whether it’s a one off or its something that’s been going on for years. Ideally, after a separation, when children are involved, the parents are able to communicate and come to some decisions together that will work for their family and that is in the best interest of the children. There are unicorn people out there that I have seen make this work. Unfortunately, all too often that’s not that case and one or both parents use their children as pawns to hurt the other parent and use the courts to control the other parent. There are times that the courts hear the matter and are able to make a fair decision that ends up working for everyone, but again when parents aren’t forth coming with the actual truth it often means wrong decisions are made by the courts. There are also people that disregard court orders. I’ve been witness to such a person saying “Fuck the judge and fuck the courts”, and she still got away with barely repercussions. There is definitely something to be said for how broken the court system is and how unfair, in some circumstances, it is. It all boils down to really looking at yourself and not doing things solely for your own benefit or to get back at the other parent. If we all do what’s best for the kids and stop viewing the other parent as the enemy the courts would be empty.  In most cases you chose to have a child or children with the other parent so why are they evil now that you are no longer together. Before anyone else says it, I know that sometimes there cases that a parent should be kept from the children for the children’s safety; especially when abuse is involved. In this post I’m not looking at those instances because that is a whole other animal that deserves its own post.

               According to BC family law mothers and fathers have equal rights to their children but, in 80% of cases the children live with the mother as their primary parent. Seems in most circumstances its assumed that the children will go with the mother when a relationship is dissolved. I understand, and have seen first hand, that many more dads are the primary parent or share 50/50 parenting time or are at the very least very involved, far more than when I was a kid. My memories as a child in the 80’s consists of most of my friends living in single mother home who had little to no contact with their father’s. My house was no exception to that. I think what may have been different in my house than in some others is that my mom never spoke badly about my dad. After they split, we lived within driving distance for 4 years before moving across country. I only remember seeing my dad a hand full of times during that 4 years. My mom would have let us go with him any time he asked, he just rarely asked. Today I think that is rare. Most dads I know want to be in their children’s lives as much as possible and to have as active of a role as they can while living apart from the other parent. So, what happens between love and babies to you’re a terrible person that should not be left alone with children? Well, I can’t speak about every case but I can tell you what I have seen and how for better or worse that’s turned out.

               My first experience with family court was way, way back in 1995. I explained in my post about step-parents that I went to court for the fear of having my son taken away from me. Something that was very unlikely to happen but I was 20 and, like Jon Snow, I knew nothing. Once we got to the big day the other side wanted joint everything. I was not willing to give up anything to someone that was stranger to my son, except supervised visits. My son being 17 months old the judge saw things my way. My plan was to only have things supervised until Dad, family and my son knew each other. Which is what I did. The order remained supervised visits until Stephen was 13, but hadn’t been enforced since before he was 2. Once in court I did what I thought was in the best interest of my child. The only people he’d ever been alone with were people he’d known since birth. I didn’t see it being beneficial to force him to go with complete strangers whether they were his family or not. Even his gramma came to my house and hung out with him and fed him smarties until he was willingly sitting on her lap, before she took him out for the day. My intention was not to use him as a means of control but to allow him the best possible experience with his new family and I think that’s what happened. 29 years later I would fight for the same thing today. With all the changes in court I don’t know if I would win but I still firmly believe I did the right thing and today he has never known a time without his dad or that side of his family!

               I didn’t have any real dealings with court after that until 22 years later, and since then family court has been a constant part of my life in one capacity or another. I have dealt with lawyers, worked with lawyers, but mostly had to be my own lawyer or do the work of a lawyer for someone else. In the last 7 years, besides duty counsel, I haven’t used a lawyer any time that I have been to court. With that has come more knowledge about the family law act than I would like to have. As a non lawyer, but with some knowledge of the law and the provincial system, I have been able to help other people that are also self represented or at the very least direct them where to go to get help. What I have noticed is that the system is broken…obviously.  One party makes an application to the court, let’s say its to increase parenting time. The other party disagrees with this and wants there to be less parenting time for the other parent. They both appear before a judge and state their position; either an interim order is made or a date for a hearing is set or both. There are 3 ways that you and the other party go before the judge. You both are self represented; you both have lawyers or only one of you has a lawyer. If only one of you has a lawyer it’s a whole new ball game. It’s been my experience that if the respondent is the primary parent, they are also the parent that has a lawyer. That is obviously not always the case it is just want I have witnessed. I believe for single lawyer suits it is a strategy to delay the process as much as possible. By doing this the applicant misses out, sometimes for years, on any kind of significant parenting time with the child or children. Once in front of a judge I’ve noticed there is a reluctance to changing the status quo, especially if the child is thriving and there is nothing glaringly wrong with the primary parent. I’ve also seen way too much, that when only one party is a self litigant the lawyer for the other side take unnecessary advantage of that. The lawyer uses the self litigants lack of knowledge against them. Is that allowed, no, but without the legal know how, who is going to stop them, The primary parent holds a lot of power especially if the have a lawyer. But, why is this fair. What happened to the parents having equal rights? Four days after the assault I experienced we were before a judge for the purpose of increasing parenting time. The assault was brought up and became the focus of the hearing. Not only was more parenting time not awarded but more was taken away. The judges reasoning was to allow everything to calm down and have “her” be happy. The child being female, a witness to violence and in the middle of the assault it was assumed the “her” was the child. It was not. Once the primary parent calmed down and was happy with the new status quo of the limited parenting time then a new gradual move towards more time was allowed, but not before an order was made to remove me and my children from our house so that she could come into my home, inspect, dissect and judge my home for the child’s safety. I’d been parenting for 25 years and a mother of 2 years knew better than I did according to the court. Please explain to me how this was in any way appropriate or allowed. The system in this case was to placate and subsequently reward the violent party and to punish and revictimize the victims. Broken!

               I am a child support recipient and what I’m about to say is likely going to be an unpopular opinion…. the child support guidelines in Canada are set too high. Is child support important and necessary? Absolutely, 100%! Should both parents participate in financially supporting their children? Again, yes! Here is my problem with it…the guidelines that are used in Canada are based on the payor’s gross income. There is the lovely tax bracket of the middle class that you can be making a really good money but you lose 20% to 50% of it to taxes and so your net income is significantly less than your gross. This being the case it doesn’t always allow for the payors to be able to support their own life after support is paid. Do I have a solution? Not really. The courts are so clogged that I think setting support on a case by case basis isn’t really feasible. Don’t get me wrong I have been on the receiving end of getting support that is so far under the table amount that its laughable. I actually found the paper work the other day and 16 years worth of child support amounted to about $17,000. The math doesn’t math on that but that’s what the paper work said. There has to be something in between, the payor can’t afford to live because they are paying to much, and the payor is paying so little that it barely helps or cover anything for the receiver. Adding to the problems with in the court system concerning child support is how parents manage the situation. Again, child support is important and necessary, and I do get child support but I find that there are too many problems among the parents to start when it comes to child support. If both parents could come to an understanding about support more people would stay out of court. I am not trying to ruin you are bankrupt or destroy you. Payors…. you have to pay! This is not something you can run away or should run away from. This is for your kids. This is so your kids have food and clothes and a roof and school supplies and maybe even swimming lessons. This is not the bill that gets paid after everything else this is what gets paid first and the other things come after. Less money to your vices and more to the priorities. There also needs to be some kind of understanding that it is likely that the receiver has already paid for the rent, bills, food, sports etc and the support is a kind if reimbursement of that. You don’t get to dictate what it is spent on as long as your children are being cared for its not your business how the money is used. Receivers…. this is not a way for you to control the payor, ruin their lives or keep their children from them if they don’t pay. Something I have said to my kids over and over when they ask me why I’m not with their dad, “its better to have 2 happy parents apart then it is to have 2 miserable parents together” (mostly this was in relation to the amount of arguing that was going on but also fits here). Part of that is me not making his life miserable now that we are not together. I’m sure he will disagree but I have done my best to try to work with him when it comes to child support. Its unfortunate that I have had to have the courts get involved but I am still willing to work with him. I have always made it a point to keep money and relationship as two separate entities. I can be fuming over not getting much needed support and still encourage a relationship with the kids. Finances are an adult problem. Spending time with Dad is a kid’s right. One does not determine the other and it shouldn’t, ever. Moral… work together and both of you remember this is for your kids. It’s not beneficial for the kids to see the paying parent struggling, or to see the receiving part go without because of non payment. Again, broken.

               This directly leads into parenting time and the crazy amount of parents that threaten the other parent that they can not see their children until the support is paid. And, back to court we go. Primary parent works over time to show what an awful, or irresponsible, or abusive person the other parent is while the other parent desperately tries to gain traction in a parenting schedule and are often only give bread crumbs for parenting time. I know this is not all parents and situations I am only speaking to things I have witnessed and heard from people that I know. I am aware that there are parents that leave awful and abusive relationships where they or they and the children were abused horribly. In those cases, the primary parent should be fighting for limited contact and often they lose that battle because of how manipulative and suave abusers tend to be. My heart hurts in those situations for the parent and the kids. That is not what I am talking about here. I’m talking about the person you were in a relationship with, and were so in love with, and wanted to have a family with that is now being villainized because they no longer want to be in a relationship with you. I find this happens most often when a victim leaves an abusive relationship and is not able to take the children with them. Its retaliation for leaving.  As I said above, abusers are manipulative and suave. Often times they come across as charismatic and candid while they describe the “abuse” they suffered. Leaving the actual abused parent shell shocked because what they are describing is the abuse that they inflicted. Crazy right?!? They must have known its abuse the whole time because they are talking about it but they’ve flipped the script or they’re taking note of things the other parent told them was abuse. This leave judges to try to read between the lines, but judges are human too and can be fooled and make the wrong rulings because some people can lie really well. So, what’s the current solution for manipulative abusers? It’s called a section 211 (in the BC FLA anyway). Unfortunately, if you want a really good one, you’re looking at spending a minimum of $10,000.00. There is a free version of this through the FJC (family justice centre) but because the counsellors from FJC are not psychologists, they are not qualified to make medical/ mental health diagnosis. And sometimes that’s exactly what’s needed. Once again you guessed it… broken.

               I don’t have some kind of magical solution but while thinking about it, I had some ideas. None of which will ever be implemented, but here are my thoughts. After a couple separates it would be the hope that they are able to come up with a parenting plan on their own. This would include parenting time and a child support that would be workable for both parents. Both parents are automatically entitled to 50/50 parenting time. Special circumstances are to be worked out, hopefully. Things such as the child is new born and breast feeding. An amount of time would hopefully be agreed upon when they baby will be able to be with the other parent and mom can pump. Maybe one parenting lives out of province or to far to make 50/50 make sense for the kids schooling. Again, trying to work together to make the best plan for the children that allows for the best possible relationship with both parents. Maybe the parents don’t really know each other and were not in a relationship. Well, they are apart of your life now so you have to figure it out. There is always some kind of solution that can be made if we try. Child support always seems to be a touchy subject so the current way of calculating when parenting is 50/50, I think is ok. Sometimes parents decide to not pay anything and only manage their own houses and sometimes the incomes are put up against each other and the difference is paid to the parent with the lesser income. That makes sense to me.  I was thinking that if the parents sat down and worked out the house hold bills and came to a decision based on that, that might work, but after doing the calculation its still to high. For example,  lets say my rent is $3000 and there are 6 of us in the house that equals $500 per person for rent. 5 of those are children so their share is $2500 that split between the parents is $1250. If I was to do that with all my bills his support would be close to $2700 and that is over what is currently being paid and unattainable, but there has to be a better system than the gross income. Maybe the best way would be to take the average net pay from the year before and build a table based on that. Once a decision is made about support (hear me out) the amount should automatically be garnished off the wages of the payor. It would come off the cheque like taxes (its not taxes though because of calculating the net pay). This would do away with the problem of unpaid support and arrears and BCFMA for that matter. Of course I’m describing an unrealistic world were there are no payor that hide funds or work under the table or are purposely under paid. Anyway, if all of that was able to be done, they’d head over to the FJC and have an order written up and voila! But Dione if everyone got along like that, we wouldn’t need family court at all, and that’s not the reality. If a mutual agreement is not reached the next step is a minimum of 6 weeks/sessions with a couple’s counsellor; which can continue beyond that, together or individually. Not to try to reconcile, but to learn what the new co-parenting relationship is going to look like. To try to work through some of the reasons for the break up and to be able to move past it enough to work together and to communicate effectively all for the kid’s sake. At the same time the child or children, if old enough, should also have 6 sessions (minimum) with a psychologist. This way the child can work through some of the hardships and feelings about their broken family and the psychologist can make some observations if needed for the future while helping the child to process. The therapist will hopefully help the couple to come up with a parenting plan and they can go back to step one and go to the FJC. If there is no resolution, and/or either parent or the therapist have concerns, this is when a section 211 is ordered. This is a service that is provided for free and the couples counselling session, any individual sessions and the child’s sessions are all taken in to an account. The parents express what they want to see happen, and if appropriate, so does the child. The information is sent to a parenting co-ordinator that reviews everything and makes a decision based on expert testimonies and the testimonies of the parents and children. If that is the end of it, great! But likely if the parents have gotten this far its because the situation remains high conflict, and so the parenting co-ordinator stays with the file. Currently parenting co-ordinators require a retainer like lawyers do. In this system a parenting co-ordinator would be free and government funded like the family justice centre or the BCFMA. When a parent breaches an order made by the co-ordinator that parent would be fined. The fine would go towards paying for the program (like default fees with the BCFMA), because we all know there are people that don’t care what the order says they are going to do what they want. Each breach will incur a fine and this will hopefully at some point make people behave. If and only if the breaching parent is clearly not learning, then the co-ordinator would send the file to a judge who will then make a ruling based on all the evidence from the entire file. This will likely result in the breaching parent to have less than 50/50 and the other parent being the primary because what is in the best interest of the child. I have zero experience with anything in the supreme court so this does not encompass division of assets or divorce but I think some of the same ideas can be implemented. I also don’t mention, because I have no experience with, spousal support. Again, probably an unpopular opinion, except for very special circumstances I don’t think there should be spousal support. If there is there should be a limit to it with the focus on it being only enough time for the receiver to get on their feet. In current system the children and the parents are the losers as they force the courts to play King Solomon deciding who the baby’s parent is. The only winners are the lawyers who are paid  amounts comparable to university tuition, or more, fighting for clients that are ripping the baby apart. In my little fantasy land lawyers could become the parenting co-ordinators and help in real ways. Family court judges could move into the criminal sector to help move some of those processes along faster. In Canada if someone is charged with a criminal offense, they have the right to a speedy trial. My experience with that it is a very slow moving process, but that’s a whole other can of worms.

               Like pretty much every other post I have made anything I’m saying is based off my own experiences, is subjective and likely bias. I do however think that most people would agree with me that the family law and court system is broken. People have children. Sometimes on purpose, sometimes it’s a surprise, but most of the times the child has 2 parents. Children are not property. Your right to them is not to them as property. It’s to having a relationship with them that helps them to grow into not assholes. They are tiny humans that have the right to have a relationship with both of their parents just like both parents have a right to know their child.  My little family law fantasy world is never going to happen. When it has come to my kids’ relationships with their dad, I have governed myself with one thought…. when they grown up what will they say I did? Did spend all my time making them think I was the better parent or that I cared for them more and that their dad either didn’t care or was a horrible person? No, I haven’t. Its not the truth. I’d rather them grow up and remember the times I talked positively about their dad, or did my best to make a visit happen. This idea goes back to when Stephen was little. Doing what’s in the best interest of the child is not always what’s the easiest for the parent. I most definitely found myself sobbing, facedown on the kitchen floor after he left for a week camping because I was jealous. The point is he went, and he had a great time (whether he remembers it or not). Ideally I would like to be friends with the kids dads’. One day there will be weddings and grandchildren to share and I would like both of us to be able to be at those big life events because our kids deserve that with out stress and awkwardness. We as parents have to take a long hard look at ourselves, and do our best to see things from the other side. If the other parent was good enough to have children with when they wanted to be with you, they should still be good enough to be with the children now that they don’t. Take the control back from King Solomon like the real mom did and do what’s best for your baby!