Tuesday, July 22, 2008

Canada and the U.S.

This past week I was in Canada at a national family law conference. It took place at a lodge in a beautiful wooded part of Ontario with a large lake, about two hours north of Toronto. I had the opportunity to speak to approximately 200 family lawyers and judges on methods for handling high conflict divorce cases.

What amazes me is how similar the laws and issues are in our two countries. For example, interviewing children in high conflict divorce cases, and handling high conflict lawyers.

They have a law about obtaining the “Views of the Child,” based on a United Nations convention, which Canada has signed but the United States has not. However, their law is not specific regarding how the child’s views are to be obtained. In some cases, the judge will interview the child. In other cases, a social worker or psychologist – or even an attorney – will interview the child.

I can certainly understand the desire to give children an opportunity to participate in matters affecting their lives, however I believe that children should be protected from the legal decision-making process as much as possible. In California, we have Family Court Services counselors who interview children in high conflict cases, but in most cases keep them out of the decision-making process. I like this approach better than having a judge interview the child, because high conflict families are suffering from such disorganization that letting the child meet separately with the judge could turn the standard parent-child boundaries upside down – with the child in a superior position since his or her parents don’t get to meet separately with the judge. I believe it’s always better to have the children interviewed by a counselor who has also met the parents and who is trained in the dynamics of high conflict families. The role children play in dysfunctional families often reinforces the dysfunction, rather than helping to improve it. If professionals don’t realize that, it can often make matters worse.

Regarding high conflict counsel, it is interesting that other lawyers are the ones raising this issue more and more at my seminars this year around the U.S. and Canada. (For some reason, high conflict lawyers don’t seem to attend my seminars, so it’s been easy for those who do attend to discuss this issue.) Interestingly, I find that the same tools and tips that work to manage and contain high conflict clients also seem to generally work in managing high conflict counsel. It fits with the information that people with high conflict personalities seem to be increasing in our modern societies, regardless of what country you’re in.

There’s a lot of discussion of administrative bodies establishing civility standards, especially for the practice of family law. Of course, those lawyers who need them won’t follow them unless there are some consequences. And the 80-90% of family lawyers who already act reasonably don’t need a list of standards to follow.

We will see what evolves in our different states, provinces and countries. With everyone working on these same issues, we’re bound to develop some good approaches. We certainly need them as we are getting more and more high conflict cases in family courts – around the world!

1 comment:

J.R. said...

A friend living in So. Canada told me an amazing story. She divorced her husband after his BPD caused him to become abusive and violent. The had six children together. One late evening, she and her children who were awarded the family home, awoke to fire trucks bearing down on her van parked out front. Her ex was there to, because he had just set fire to the van.

Later, the ex brought an action against my friend to obtain parenting time (his parenting time was completely removed in earlier court proceedings). Why? His argument was that his wife abused the children because.....are you ready?.... because she did not get them away from the window fast enough, causing them trauma.

This to me, although it arose in Canada, is the archetype for what is wrong with the court system: we value everybody having their day in court more than protecting the victims of people with obvious problems. Believe it or not, ex actually had a lawyer argue his case.