That dumb judge ...

That judge did not understand what a *** my former wife is ...

I cannot feed my kids and that *** has convinced the judge that he doesn’t have any money to pay for child support – what a liar ...

The judges are not fair – they take the side of the mother and are prejudiced against us fathers ...

That dumb judge – I am not going to obey that order ...

These are the things that family law litigants – mums and dads – say about our justice system.

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The people in the system say:Getting a hearing takes forever, children will be grown up before the courts finally make a decision about them.

What do judges know about the children for whom those judges are making decisions? Practically nothing, and the judge must decide the best interests of those children.

Court burns families out.

Lawyers charge way too much, families are left in debt – big time.

The legal jargon!! The legal processes!! Ordinary people do not understand.

Courts disempower parents.

Every judge decides things differently.

Court processes permit mums and dads to beat up on each other. Court becomes a battlefield.

These are just some of the observations that people who work in the family justice system make, when asked about the problems that they identify with the existing processes.

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I am a judge who sits in family court, among other things. When I became a judge I had no experience in family law. As I sat in family court over the years, watching the battles being enacted and re-enacted in my courtroom, I became very concerned about the children. We almost never have the voice of the children in our courtrooms.

I found myself wondering about what must be happening for their children, if there was this much stress between these parents. I later learned that the impact on their children of those unresolved disputes and toxic relationship was serious indeed.

I came to understand that our family justice system is not well-suited to the close, ongoing relationships that occur in families. Increasingly we recognize that our legal processes are doing more harm than good.

It is not unusual for the courts to have family cases that go on for years, with the parents coming before judges over and over to deal with issues such as custody, access, maintenance and property. We see families back multiple times, usually before different judges. Always, the parents are adversarial and often vitriolic – the adversarial processes can be described as a toxic brew.

The problems judges are asked to sort out are sometimes for serious matters, such as deciding where the children will live, assessing income for the purpose of child support, and dividing matrimonial property. But the issues often devolve to asking the judge to make decisions about minute things,

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such as, what time they will pick up their children – 3:00 or 3:15, whether they can take them on vacations, whether they can register them in soccer or music, and numerous other issues that are properly decisions that parents should be making. These things are about parenting and the relationship between the parents and their children - their particular and unique children. These issues are not legal. These issues are about loving their children, knowing their children, knowing the skills and abilities of their children and nurturing those skills and abilities. How can a judge know those things about your children?

And yet, sometimes even after a full trial has been heard, the parties are back before the courts because they can’t work out details in their ongoing parenting. They do not have the parenting and relationship skills they need to parent their children. Further, they are often more focussed on and concerned about the breakdown in their relationship than they are about the well-being of their children. At least, that is the way it looks to those of us sitting on the bench making decisions for their children.

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In my search for answers to my questions about impacts on children of toxic stress – conflict between parents – I learned about the Alberta Family Wellness Initiative or AFWI. It is a gift to Alberta and to Canada, and in fact, to many other countries in the world.

The Alberta Family Wellness Initiative has helped us to understand that toxic stress – the kind that can occur when families have unresolved disputes and children are exposed to tensions between fighting parents – is harmful to children’s brains. I’m going to share a video with you that helps to explain the impact of stress on brain development:

Play the Core Story Video (4:05 minutes)

From my review of the brain research, I gained an understanding that fighting between parents actually harms the development of children’s brains. Actually, it harms the endocrine system of the child and even its DNA. I learned that toxic parental relationships harm children throughout their development into puberty and into adulthood. The effects of toxic stress impacts on the health of the child throughout that child’s life. This conflict between parents does not require physical abuse. Indeed, it only requires contempt by one parent for another. Belittling. Control. In my court, I saw all of this, and I saw that the parents lacked any understanding of what this behaviour was doing to their children. They would stand in front of me and say: “this is in the best interest of my child” and then they would belittle the other parent.What those parents and all of us need to understand is that what we call family breakdown is really family re-structuring.

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The reality is that parenting is a lifelong commitment, whether the parents are together or apart. The relationship between parents changes when they go through separation and divorce, but it is still a relationship that they have with each other, and most importantly, with their children. And that relationship is really key to the well-being of their children. If families and their supporters understood that concept, we would have so much less stress and definitely less toxicity.

The reality is that your role as a parent continues after the relationship between you and your spouse discontinues. You are transitioning from a relationship between the two of you to a relationship of parenting your children.

I know that your relationship as a couple is painful. You are experiencing shame, blame and guilt. You are grieving the loss of your relationship. You may be experiencing stress as it relates to your financial situation and your feelings of wholeness as a person. However, you are still parents and must continue to parent together in a way that is healthy for your children. That is not easy to do, given how torn up you may feel. You may want to cut to pieces the person who has hurt you. You probably say many mean and nasty things about them.

Nevertheless, the reality is that your children understand that they are made up of parts of both of you - both father and mother. The reality is that your children still see each of you as their parent whom they want to love and to be loved by. I want to tell you a tragic illustration of this that Dr. Stephen

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Carter has shared with me, and which he describes briefly in his book Family Restructuring Therapy at page 51: “The example I often use is of a preteen girl who academically stated, ‘Genetically, I am 50% my mother. Since my father hates my mother that part of me must be bad. I am also 50% genetically my father. Since my mother hates my father there goes the other half. I must be all bad so what does it matter if I cut myself?’”

The reality is also that your children also see their grandparents, aunts and uncles and cousins as part of them.

How cruel is it to your children to forbid them to care about the other parent? About the other members of their family? And remember, forbidding is communicated to children in many ways that are not direct.

When I learned about the impact of high conflict on the development of children’s brains, it underlined for me that we, all of us, need to find ways to support families going through re-structuring, so that the challenges that families are dealing with can be worked out in a healthy way, rather than made worse.

Families want “justice” – parents, grandparents, relatives and friends want justice and do not find it in the courts. Why? Perhaps it is because the meaning of “justice” is not commonly held. What someone in the courts means by that word and what the public means are two different things.

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Judges and lawyers mean that there is a clearly defined process governed by the rule of law and the rules of natural justice.

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We know from research that the public defines “justice” and “access to justice” as having a good life. This is a very different outcome than what the legal system has understood.

Unfortunately, when families come to court to resolve their conflict, they find a new tool box of weapons to damage the other parent. Courts are adversarial. The very structure and mechanisms developed over centuries for civil and criminal litigation are counter-productive for families.

The tool box families need so that they can continue to parent their children constructively contains help with finances, with relationship, with child development. Families also need legal information and finally, when all else is done, they may need to paper their agreement.

All of these resources cost money. How much better to use your limited financial resources to get the help you really need. You probably need early relationship counselling. You may need a financial planner to assist you to divide your family resources. You may need help in understanding your children’s particular needs at this time of stress. Let the lawyers do lawyerly things, and establish a sensible regime of assistance from appropriate resources. Appropriate for you and your family.

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I will take a moment to reflect on the role of lawyers in the family justice system. The role they play of least importance, in my view, is that of the gladiator in court.

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They are essential in their role as educator and consultant. For parents to settle financial issues they need to know what the law is. That is an information role. The lawyer can also provide paths to resolution using appropriate resources. If the parents are incapable of resolving their issues, then lawyers can advise about the court processes and can help their client ready themselves for an appearance in court.

Most of the people who work in the family justice system and are involved in supporting families, are concerned about the family justice system, and trying hard to make their part of the system work better. These efforts are often described by people who work in the family justice system as “improving access to justice”. Until recently, these efforts have tended to focus on more access to lawyers, improving the court processes, and trying to make the system work better.

In spite of tremendous effort and energy to improve access to justice though, the problems for families have not really improved. Families come to the justice system looking for ways to resolve their disputes, but often find that they get entrenched in adversarial processes that go round and round, that they spend more money than they can afford and their relationships become so toxic that they can hardly deal with each other. They end up coming back to the court again and again to deal with every issue that arises, and the problems just seem to get worse.

In Alberta, we are now working together to achieve the kind of outcome that the public wants – to help families thrive.

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I am very pleased to tell you that I am helping to convene an initiative to reform the family justice system, and I am very optimistic that we have the right people collaborating with us, to bring about the kind of change that will help families thrive even when they are going through changes in their family structure.

The Reforming the Family Justice System initiative recognizes that family justice is social, relationship and financial with a legal component. The key outcome of the “Reforming the Family Justice System” initiative is for families to thrive while they are re-structuring.

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I am Co-Convening this initiative, along with the Assistant Deputy Minister of Resolution and Court Administration Services, and the President of the Law Society. We are working with more than 200 individuals and organizations throughout Alberta, to try to re-imagine the family justice system.

As you can see, a courtroom is not a great place to work out the details of family relationships, for all of the reasons that I spoke about. However, there is a necessity for courts. There are some issues that do not lend themselves to a collaborative agreement between the parents and there are some people who simply cannot agree. Where this is the case, a third party decision maker is essential. This is where the courts fit in. For example, if there are legal issues such as domestic violence, it is very important that the parties can turn to the courts quickly to get orders that are designed to keep families safe. Courts will always be a place that families can turn to for protection, and to help resolve issues that they cannot work out themselves.

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If you and your former spouse are at a point where you know that you are moving on from your personal relationship, and you are able to agree that you want to do so in a way that is healthy for you and your children, you are choosing a path that is positive for you and your family. You may need some help working out the parenting arrangements, and you will find that there are social workers, counsellors and other service providers who can support you to create parenting agreements that will help you to make good choices for your children. There are financial advisors who can assist you with the arrangements that you need to make to create two households, and deal with some of the financial questions that can arise. And of course there are lawyers to help you with the legal issues that need to be worked out. The more that you can do to resolve the questions you have together, with the assistance of experts, the more you will stay in control of your own healthy future. Please do not default to lawyers and courts to assist you to re-structure. There are healthier and less expensive routes to a healthy, re-structured family.

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The kinds of supports that you need are well-represented by the people in the Divorce Magazine, many of whom are here today to introduce you to the services that they are able to provide you.

This is a great way for you to move forward with the kind of change that will allow you and your children to have a healthy future.

Good luck in your explorations today.

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