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PROBLEMS WITH THE FAMILY COURTS SYSTEM AND THE SOLUTIONS

Gene C. Colman participated in a webinar sponsored by Mary Auld-Kovacs – “Let’s Talk Real Talk Show” on 31 January 2025.  We present here Colman’s edited opening remarks:

Question posed at webinar on 31 January 2025: Based on your experience with the family court system can you provide an example of what you feel would be one of the significant problems with the family court system that in your opinion needs to be rectified and what practical solution would you propose to fix that problem?

Gene C. Colman response:  Thank you for the opportunity to share my perspective on the family court system. After 45 years of experience as a family law lawyer, I firmly believe that our current approach to dispute resolution is fundamentally flawed. The adversary system, which pits two warring sides against each other, does not and never did serve the best interests of families and children. [In a previous blog post, I have raised other issues with respect to family law dispute resolution.]

Reforms: Various reforms have been implemented to mitigate the worst aspects of the system.  Example are:

  1. Mediation;
  2. Parenting assessments;
  3. Voice of the Child Report;
  4. Parental Coordinator;
  5. Some legislative changes (such as eliminating divisive terms such as “custody” and “access”, and Family Law Rules changes; and,
  6. Collaborative Law.

Band-Aids: These measures, while surely helpful, are merely Band-Aids being applied to the festering wounds. They operate within the existing adversary system.  This system inherently rewards aggression, sharp practice, and tactical maneuvering.

System = Conflict: The result is a system that perpetuates conflict, rather than resolving it. Report after report tell us that the system is broken.  A former Supreme Court of Canada judge authored one such report.   Yet, those in charge of the system seem reluctant to think outside the box and implement meaningful reforms.

Equal Shared Parenting:  A crucial step towards meaningful reform should be the introduction of a legislated rebuttable presumption of Equal Shared Parenting. This would provide a starting point for dividing decision-making and parenting time.  We only need require that each parent is deemed an adequate parent.  Where all factors are relatively balanced, the result should be equal shared parenting where at all possible. The social science literature overwhelmingly supports the benefits of Equal Shared Parenting for children, families, and society as a whole.

Parental Alienation: However, Equal Shared Parenting is only the first step. We must also address the incentives that drive parents to engage in malicious behavior, such as parental alienation. Recognizing parental alienation as a form of child abuse and implementing legal and other measures to prevent it would be a significant step forward.

Different Role for Family Law Lawyers: Now I come to the most significant recommendation –  Ultimately, the most radical and necessary reform has to be a fundamental shift in the approach of family law lawyers and in the approach of self repped litigants. Rather than perpetuating conflict, lawyers and others must be incentivized to find solutions that prioritize the well-being of families and children. This requires a collaborative type approach, where lawyers work together to identify applicable legal principles and develop solutions for the fractured family.  A family law lawyer should not see him/herself as a gladiator.  Rather, the ideal self image must be a solution innovator.

Still a role for Judges: Where the two sides cannot come to a solution – then OK we will have a judge decide. But we have to work in incentives for the parties and for the lawyers and for the judges to find solutions rather than create World War III.

Let’s serve families and kids: By implementing these reforms, we can create a family law system that truly serves the best interests of families and children. It’s time for us to rethink our approach to dispute resolution and prioritize the well-being of those we serve.

You may watch the entire webinar on Youtube: Click here.

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