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1 divorce: 54 hearings, 5 judges, $200,000

The Toronto Star, (Canada's largest daily newspaper), by Susan Pigg, Living Reporter, May 08, 2009

Gloria Lewis finally worked up the courage to leave her abusive husband six years ago and thought she and her two young children would be well on their way to a new life within six months.

But next week she heads to court for the 54th time and will appear before the fifth judge to handle the couple's divorce proceedings, having spent more than $200,000 in legal fees and amassed four boxes of legal documents. She spends her days working for "the greatest boss in the world" and her nights researching case law for her busy lawyer as a way of trying to keep a lid on her mounting divorce tab.

Today Lewis, who earns less than $40,000 a year, is preparing for another stint before a judge, wondering if anyone will ever put an end to what she terms "legal bullying" by her ex-husband. The biggest issue that has eaten up her savings and keeps her awake most nights: How much do kids have to see a father they fear, and will the visits be closely supervised?

Lewis' name has been changed to protect her children. But her case, which even her lawyer admits is "extraordinary," illustrates how Ontario's family court system is, in the words of veteran divorce lawyer Philip Epstein, "collapsing from within."

Attorney General Chris Bentley has been meeting with family law experts for their advice on fixing the system. He says a first step was the passage this week of Bill 133, which deals mainly with a fairer division of pension assets and protections for victims of domestic abuse.

"There's much that is very good about our family law (system), but it needs to be faster. It needs to be less costly. It needs to be made more effective," Bentley said in a telephone interview yesterday.

But nothing in the bill, says a frustrated Epstein, deals with "the systemic problem of an under-resourced and over-populated family court. We're at a crisis point where some courts are simply so bottlenecked that there's no reasonable access to justice. The system is collapsing from within because there are too many cases and not enough resources, and because the government has not been innovative in streamlining the system."

The key, says a growing chorus of family law lawyers, is identifying high-conflict cases early and setting firm deadlines - and penalties - aimed at prohibiting cases from dragging on for years.

Lewis knows all too well how the shortage of judges and court resources has created chaos.

"A lot of these (54) appearances were case conferences to see how things were going," says Lewis. "I told my boss back in 2006 that the case was coming to an end. It's two and a half years later and I'm still averaging a court appearance every second month."

It took more than three years just for the couple to finalize their divorce and agree to a division of assets. But custody has proven to be the big Achilles heel of the case.

While Lewis was granted sole custody, her ex was granted some contact with the kids, but only under supervision by a third party to ensure the children were safe. The court imposed a restraining order, to keep him from verbally abusing his ex-wife when picking up the children. He violated the order "at least 18 times," with impunity, says Lewis.

"I have an ex-husband who's always seen himself as above and beyond the law, and nobody has told him otherwise."

As Lewis' ex-husband pushed again and again for more access, she would lie to her kids about her frequent court appearances, telling them she was out of the office for job training.

Her lawyer did what he could to make the ongoing battle less painful, sometimes driving to her office so she could sign court documents on the back of his car. But even simple court orders proved to be problematic: At one appearance, a judge reiterated the need for access to be supervised, but somehow the clerk who typed up the order left that key word out.

It took weeks, and more court appearances, just to sort out that critical issue.

Lewis' lawyer, whose name can't be used to protect his client's identity, says he could see the mounting frustration among judges on the case who "were pulling their hair out" knowing that the only legal hammers they have at hand - tough words, court orders and fines - can't really do much if one partner wants to be unreasonable.

"When you speed and you get a ticket, do you never speed again in your life?" asks the lawyer. "If someone is naturally inclined to be a jerk," judges are somewhat limited in what they can do, he adds.

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re: 1 divorce: 54 hearings, 5 judges, $200,000

May 10, 2008

Susan Pigg's article is one of an number of Toronto Star articles she has written on the family court processing of divorces.

Implicit in all of them is the uncritical acceptance of the notion that more judges and court resources will solve problems relating to delay, cost, custody battles and the parental alienation of children.

Findings from a number of research studies clearly indicate they will not.

These problems are partly grounded in the nature of the adversarial process itself.

Conclusions from various studies also indicate that divorce mediation, an alternative to adjudication, is safer, less costly, speedier and more likely to de-escalate conflicts over custody, financial support and access.

In short, divorce mediation transforms a tug-of-war into a tug toward peace.

Desmond Ellis, La Marsh Research Centre on Violence and Conflict Resolution, York University