A new paradigm for marriage failure is needed and the first response is a system designed to save the relationship. It needs to be widely available and could take the form of an organization like the Calgary Counselling Centre. These organizations should be partially supported by taxes, charitable membership with fees geared to income. Many marriages can be saved if help arrives early and children can be saved from the downstream battle. Lawyers may not like it because they may lose business but that is how it should be. Most of these issues are not legal as Judge Brownstone states. They are human relationship issues and need professionals not "legal beagles" pulling in $25,000.00 per client on contested divorces.
Where jurisdictions have enacted presumptive shared parenting, the divorce rate has dropped. Governments need to explore these outcomes and introduce the required changes to the Divorce Act in Canada. One of the findings of such an examination might just be we can probably save some marriages with the right intervention, save a lot of grief for children, reduce the burden on family courts, save money on more judges, get high priced hired guns called lawyers out of the lives of families and longitudinally reduce a lot of the current negative social outcomes occurring to children in single parent families. PMB C-422 sitting in the federal parliament is a viable mechanism to start the process for change and almost 80% of Canadian support its intent. This crosses political party boundaries. What are we waiting for Rob Nicholson, the Federal Minister of Justice, representing Niagara Falls?MJM
Toronto's Jewish Children's Aid Society has become so alarmed by the growing number of kids being used as foot soldiers in their parents' nasty divorces that it's fighting back with the biggest tool in its arsenal.
It's putting the children in foster care.
One was an 11-year-old boy so wounded by his parents' blitzkrieg of bad behaviour – from "chronic and constant" shouting and bad-mouthing, to physical violence – that he tried to slash his wrists.
"The conflict between the parents was so toxic, we felt it was emotional abuse," says Howard Hurwitz, director of children's services for the Jewish Family & Child Service of Greater Toronto, whose workers seized the boy and his increasingly withdrawn older brother after every attempt to help the parents failed.
"We thought long and hard before doing that, but removing them provided a neutral setting. We should be doing it more, as a last resort."
About 10 times a year, Hurwitz's agency is in court seeking ceasefire orders, hoping that forcing warring ex-partners into counselling, or moving children away from the conflict, will stop the feuding from escalating into the orchestrated campaign of hate known as "parental alienation."
But controversy is growing about how – and if it's even possible – to get a grip on those cases, which are proving to be one of the biggest challenges for already overburdened family court judges and child welfare experts.
The 2007 seizure of the 11-year-old and his brother, who were in care for eight months, was enough to force the parents to get help. The mother has sole custody of the kids – because the courts and social workers take the view couples who can't get along shouldn't share their offspring – but the boys remain damaged, says Hurwitz.
"We're seeing more cases where nothing else will work and the parental behaviour is so out of control, the kids are being affected. This isn't the usual kind of mudslinging you can see in divorce. It's War of the Roses stuff."
In many cases, the parents are educated, middle-class professionals who can't reach a divorce settlement on their own or with the help of a lawyer. They have the money and means to wage to-the-death battles over custody and assets.
Others act out because they are unable, or unwilling, to sell the house and move on. Some lawyers refer to these assaults as "divorce dating" – a way to keep the passion going, at least in a courtroom, after one partner pulls the plug.
It takes about two years to move from relationship breakdown to a new life, research has shown. But that can become a lifetime of suffering if parents leave the kids teetering on an emotional weigh scale, fearful of the consequences if they talk too long on the phone with Dad, or have too much fun at the birthday party thrown by Mom, or ask to spend more time with one parent's new family.
About 38 per cent of marriages end in divorce before the 30th anniversary. That translates into 70,000 divorces a year in Canada. And then there's the growing number of common-law and same-sex couples with children who may not be able to afford mediation/arbitration to settle disputes and are turning to the courts, instead.
While most separating couples are able to work out settlements civilly – around their kitchen tables or in the offices of mediators, arbitrators or collaborative law experts – family law lawyers estimate 10 to 15 per cent are so "high conflict," they can spend years, and their life savings, battling in family court over everything, right down to pillowcases.
Veteran family law lawyer Jeffery Wilson has said it's time for more drastic measures – a government-funded high-conflict response team that could step in before these cases hit the courts.
The team would have the power to sort out complex disputes, impose binding judgments, and get the kids, as well as their parents, counselling and treatment.
Hurwitz became so concerned five years ago about "how crappy a job we were doing" with children of high-conflict divorce that he called a meeting of experts from some 30 agencies in the GTA – children's aid workers, family law lawyers, police officers, judges and psychologists – to see if his agency was alone.
The two-hour meeting revealed that most were burned out and struggling with the fallout of family feuds. Teachers and relatives were calling Children's Aid, worried about kids who were severely depressed because of their parents' fighting.
Out of that meeting, the High Conflict Forum was born.
The group has met regularly since then to create protocols and counselling specific to high-conflict separation. It has also developed a 46-page "best practices" guide for professionals dealing with family breakdown, detailing the latest research as well as continuing debate over how best to deal with high-conflict couples.
In May, the group launched the first training sessions for front-line workers and can't keep up with demand.
"We tell parents, `Here is what you can expect of your kids,'" says Hurwitz. "`They will have adjustment difficulties into adulthood, they will have problematic relationships, a higher incidence of mental health problems, they will drop out of school. Despite your desire that your child will be a doctor, lawyer or an accountant, it isn't going to happen unless you change your ways.'
"We tell them that emotional harm is a form of child abuse and grounds for child welfare involvement and protection. The courts have supported our contention that it is, too."
But front-line workers are crippled by a drastic lack of services to deal with these families – and confusion, even controversy, over which remedies work.
Where judges have been slow in the past to crack down – for instance, on mothers who simply refuse to hand the kids over to dad on his access days, or fathers who try to turn the kids against their mom – many are getting tougher.
But there's growing concern that inflicting what North York family court judge Harvey Brownstone calls "the capital punishment of family law" – denying parents custody of their children or shipping the kids of to "deprogramming" workshops – may do more harm than good.
"People are trying to use the legal system to address problems that are not really legal," says Brownstone, author of the bestseller Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court. "If someone is suffering from so much pain at the end of a relationship that they cannot focus on their children and try to deal with the other parent in a civilized way, that is not a legal issue; that is a problem that needs counselling."
North York social worker Ted Horowitz has had a clear view of family dysfunction through the one-way mirrored glass at his Family Solutions office – and some ugly insights into how oblivious some parents can be to how their actions affect their kids. Such as the father who spent his time with his children, under Horowitz's watchful eye, building a gun out of Lego.
"Now, if ever there was a time you were going to build a Lego castle, don't you think this would be it?" laughs Horowitz, who was assessing the father's ability to be unsupervised with his kids.
Horowitz and his colleagues (who also do mediation and counselling with troubled families) are often asked by judges to assess parents, to help the court sort out custody issues, and are among the growing ranks of so-called "parenting coordinators."
A major part of their work is helping parents lay out their new life, word for excruciating word, in "parenting plans" that can stretch 12 to 15 pages and spell out everything from when the kids can call the other parent to who's responsible for the hockey equipment.
Brownstone calls experts like Family Solutions the "gold standard" in helping warring couples stay out of court.
The only problem? It can take at least two months, and often six or eight, to do those important assessments, and they cost $15,000 to $30,000, putting them well out of reach for most families. Children's Aid societies also offer some family counselling, but Jewish Family & Child Service's Hurwitz says there's a drastic shortage of counsellors qualified to treat high-conflict couples and their kids.
It turns out it's not just the big issues – custody and division of assets – that are the most explosive issues for estranged couples, Horowitz says. Often it's everyday issues – what time can I pick up the kids, should they have a cellphone, when can they see their grandparents?
Firsts can be real minefields. God forbid if Dad gives Joey's loose tooth a tug during his weekend visit, cutting Mom out of the fun when the Tooth Fairy comes to visit.
"I've seen situations where Mom has taken the child to get their first haircut and Dad is so upset, he takes them again the very next week," says social worker Linda Chodos, a member of the Family Solutions team.
"Something I've never included in a parenting plan, but I may start, is a clause on tattoos and piercings," says Horowitz, who lists those among the many new curses, right up there with cellphones, MSN and webcam usage, that can be complicated enough for loving parents to agree on, let alone high-conflict couples.
But figuring out what's really playing out in family law courtrooms isn't that complicated most of the time, Chodos contends.
"The haircut isn't really about hair. It's about loss – a loss of control, a loss of hopes and dreams. These parents didn't expect this was how their family was going to be."