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How Would You Improve the Family Law System?

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15 minutes ago, shawniebear said:

The problem is that the people who should take those courses never will. It's kinda like how the worst parents end up having the most children, whereas model parents will rarely have more than 2 children, if at all. The lawyer that I was working for once found out prior to sentencing, after the client had been convicted, that this guy had 12 children....with 4 different woman....in 3 different countries. He was unemployed and about to go to jail for a the second time. 

I always had a hunch that my parents should have stopped at child #2 /s.  

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Issues I've seen in family law are as follows:

1. There are no consequences to claimants who make false allegations of abuse to obtain protection/restraining orders where none is warranted. This NEEDS to change.

If we want to avoid the bastard wife playbook (for lack of a better phrase) we need to identify and flag potentially abusive litigation that proceeds in the following order: female partner obtains restraining order against husband, obtains exclusive possession of the home, obtains order for child support and begins enforcing immediately, female partner allows home to go into default (mortgage or lease). Then later that same partner is found to have concocted the story, status quo is already set, and other partner is now an access parent with no place to live and no funds to obtain alternative residence.

Likewise, we have the deadbeat dad playbook: Move out of the matrimonial home, never pay support, never seek access. Upon support being sought, access is requested and fought over,

2. Courts should mandate 50-50 parenting as the default and presumptive position without sufficient evidence to deviate from that system. This would solve so many problems. I can't tell you how often my family clients fight over parenting time only to end up at a 50-50 eventually and everything is fine after that. Not being with kids is incredibly stressful and painful for parents, so it drives a lot of the litigation.

3. Real budgets should come back. What I mean is that interim support needs to take into account the means of both spouses based on actual expenses, not claimed expenses. courts should make a real effort to set support at an amount that actually normalizes net disposible income after expenses, not before. Yes, mom or dad might have 54% of the NDI according to divorcemate, but if they're also paying 75% of the other spouse's expenses, then the NDI is more like 85% in favour of the payee.

4. Chambers justices should refuse more interlocutory applications where the issues are far too complex to be argued in 20 minutes. As a starting point, if your affidavit is more than 20 pages including exhibits, it's too much for chambers. A 20-page affidavit takes ten minutes to read, so gtfo of here with that.

5. Custodial decisions made by the non-custodial parent should be able to be unwound immediately. I can't tell you how often a child is hurt by a parent's decision to put a kid into a different school only to have them pulled from that same school three months later when the decision is made. Likewise, there needs to be cost consequences for parents that make unilateral decisions where there is evidence that both parents make custodial decisions.

6. If you haven't noticed the trend, I think a big problem is that vexatious family litigation is frought with the failure of the courts to award costs against non-successful parties in family litigation. Parties taking unreasonable or unnecessarily harsh stances on issues need to be sanctioned with costs. If they have the money to hire a lawyer, or for self-reps to show up in the middle of the working day, they can pay costs when they get out of line.
 

There's more, but I need to think of it now.

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I am not a family lawyer, but I clerked at a superior trial court which sees a considerable amount of family files. I want to add a few comments. 

1) I think the value of mediation and other  "non-adversarial" approaches is in many cases limited. While I support mandatory mediation for most cases (excepting certain cases where there are abuse allegations), I am skeptical that it can resolve the sort of high-conflict disputes that come back to court time and time again. Perhaps the single biggest issue in family disputes is a lack of financial disclosure. Mediation is ineffective at achieving disclosure, and it is against the interests of one party (usually the woman) to settle without full disclosure. 

2) For simple cases, the law is too complicated. In particular, the jurisdictional overlap between the provincial and superior trial courts is baffling to self-reps. There is no reason why there shouldn't be a unified family court, but there isn't one in my province. There should only be one statute that a self-rep should need to refer to, and it should be written in plain language. 

3) For simple cases, family lawyers are too expensive. Lawyers charge way too much money for cases which involve a relatively straightforward analysis. This is possible, in part, because licensing restricts the competition, forcing potential litigants between self-repping and $400 an hour. Efforts to expand competition to leads to transparently self-interested outrage from family lawyers, who fear losing their monopoly. 

4) For simple cases, family lawyers regularly fail to analyze cases prior to trial. It is infuriating to see full blown trials where it becomes clear, by the end, that the result was inevitable and obvious to any reasonably informed observer. It is more infuriating to see after the fact that neither side made a settlement offer anywhere in the ballpark of what the result was going to be. This becomes more frustrating to see when you know that a) the parties paid enormous amounts of money for that trial, and b) a paralegal could easily have identified the issues and provided a good analysis to get a settlement that is in the right range.

5) For complicated cases, lawyers often suck. Family law can often raise incredibly complex issues, especially in terms of financial disclosure, property rights, and jurisdiction. These are not issues that should be addressed by someone without legal training and years of experience. Yet legal training and experience is clearly not enough, as lawyers regularly fail to try these cases in a manner that is even remotely satisfactory. Indeed, it often appears that counsel are not even aware of the complexity of case until the trial is underway, which is obviously way too late for proper disclosure and trial preparation, leading to chaos (see, e.g., https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc964/2018bcsc964.html). It also seems that counsel are often either unwilling or unable to either do anything beyond superficial legal research, or to contract that out to another firm. A regular experience was that counsel are unwilling to prepare written submissions to close trial, which is fine when a trial is over something that should never have gone to trial, but a complete nightmare when the issues are complicated and the trial lengthy. 

I don't mean to suggest that most or all family lawyers are incompetent, or that incompetence is exclusively found within this area of the law. But while personal injury seems to take the most heat for bad barrister work, my experience was that family law contained by the most potent combination of a) highly complicated cases, b) lawyers incapable of running those trials nonetheless running them, and c) clients that, while wealthy, lack the sophistication to recognize that they are paying for poor work. And it seems to me that the law society has no interest in protecting the public from the injustice that arises from this combination.

 

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On 7/2/2020 at 6:53 AM, Ambit said:

Seems an insane case.  I really feel bad for the judge for having to hear the trial, and write the judgment.  Imagine the time it took to go through each of those issues.  Looking over dates of trial, the trial took place over two years.  Then took further two years to write judgment.  Only to take another round to appeal... Lawyers laughing all the way to the bank at the prejudice of the parties.

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16 hours ago, Ruthless4Life said:

Seems an insane case.  I really feel bad for the judge for having to hear the trial, and write the judgment.  Imagine the time it took to go through each of those issues.  Looking over dates of trial, the trial took place over two years.  Then took further two years to write judgment.  Only to take another round to appeal... Lawyers laughing all the way to the bank at the prejudice of the parties.

And while that's an extreme version, miniature versions of that happen all the time. 

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