“Ontario’s family 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.

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

Ontario’s family 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 court system that handles separations, division of assets and custody issues in Ontario.

 In some courts, 50 to 70 per cent of couples are going it alone with no understanding of family law, rules of evidence or even what documents they need to make their case, he says. Most say they 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, due to hit bookstores later this month.

Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court isn’t so 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 over support 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 family courts 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.”

The Toronto Star, Sat., Feb 7, 2009

by Susan Pigg,  Business Reporter