The story of family courts is a tale of woe in almost every country and this presentation, from Sept 2000, demonstrates what little progress has been made.
A Degraded Justice:
Instruments of Perjury in the Alberta Family Court
Submission to the Unified Family Court
Task Force, September 2000
Presented by Louise Malenfant
Family Advocate of Parents Helping Parents
“The Administration of Justice is the most important Pillar of the Good Society.”
On behalf of Parents Helping Parents, I would like to introduce both myself and the advocacy service to this honoured Task Force as well as to the province of Alberta. I don’t wish to stand here and tell you that I am an expert on Alberta court rooms, but I will say that I have been studying Canadian family law issues since 1994 and practiced family advocacy principles that were established and finely tuned in the province of Manitoba. I have provided a brief dossier to Committee members to introduce myself, but don’t let the letter from the former Premier of Manitoba fool you. Though I did begin writing to Gary Filmon in 1992 regarding my own family law experience, it only feels like it to him that I have been writing for ten years. The truth is, it was 7 years since we began. We could never have accomplished great strides in family law without the understanding and support of Mr. Filmon, a man we in Manitoba will always affectionately call the First Premier of Family Law. Further information about the history of Parents Helping Parents can be provided on request.
Many severe psychoses that are itinerant with disturbed divorce courts were all present in Manitoba, such as perjury, ex parte orders, unsubstantiated allegations of child abuse and domestic violence, satanic ritual outbursts, lawyer misconduct and self enrichment, not to mention gender bias and chronic abuse validation demonstrated by the judiciary and the child welfare system. [ emphasis added ]. It was a long list, but when I left three weeks ago, my case flow was getting so slow on these issues that I felt comfortable leaving my province in good hands. I welcomed with gratitude an invitation from Alberta’s rich volunteer corp. of family rights organizations to join them here in their efforts to get on the track of fairness and gender equality in this province.
I say “volunteer” because there are literally no publicly–funded services for non custodial families – only custodial parents receive government support through public funding with specialized domestic violence against women only programs, women’s shelters, and unfettered access to the courts of this province. I say “rich” because many of the problems I listed above as once occurring in Manitoba, are indeed happening with hysterical abandon in Alberta’s family courts. I think the only thing you don’t have is a satanic ritual problem, but every other sickness is infecting the courts with epidemic frequency. It takes exactly that for so many men and women to come forward in a political movement to return justice and equality to the family court. Canadians are not known for their radical natures, but many Albertans have risen up to oppose unfair family law practices.
For that reason, I hope to provide this Task Force with the view from a province which established one of the first Unified Family Courts in Canada, and a newcomer’s preliminary observations of the current strains of disturbance, which are causing many people to be permanently harmed by their experiences in the family courts of Alberta.
The Good News First
There are judges currently sitting on the Queen’s Bench of Alberta who are nationally renowned and admired for the progressive decisions they have made concerning false allegations, parental alienation, and the principals which result in defining shared parenting as in the best interests of children. These judges are known for testing the evidence, and weighing its consequences in a fair and respectable manner, and their caselaw has spread to use in provinces outside of Alberta. They are admired, even loved, by the people I have spoken to in this province. In Manitoba, there were those of us who loved these judges no less, for they demonstrated no bias for one gender or another and they knew the difference between a true and a false allegation. I would like to take a moment to bow in appreciation to these excellent Alberta judges.
A Unified Family Court is definitely an excellent plan for Alberta, for it is the way of the future for the most progressive courts in North America. Alberta has already made a fine start by establishing many court-attached services that will only improve with time, and it is also remarkably welcoming to those who represent their own interests before the court. This is in contrast to Manitoba, where self-representation is so rare that judges have an immediate aversion to anyone who attempts the task, and their decisions reflect their discomfort to any contact with litigants. Legal Aid practices in Alberta are a severe impediment to justice and many more people choose to represent themselves in this province as a result. It is still every encouraging to see how the courts of Alberta view the practice of self representation, and this would only improve with the process simplification that comes with a Unified Family Court.
The UFC consultation paper reflects upon the benefits of having a dedicated set of judges who exclusively deal with family law issues, and the advantages of having a smaller group to direct specialized training towards, who will simultaneously benefit from their exclusive experience of family law issues. To some extent, this could be possible, but it was not the long term reality of the UFC experience in Manitoba. Because of the smaller group, the judges of the family bench became very well known to the stakeholders and the users of the family court system, which caused certain judges to be identified as regularly biased towards small lobby group initiatives, who expressed known biases, who were frequently unfamiliar with files, and who in all ways, became so reviled and disrespected by the legal and family community that new blood was eventually needed to dispel public revulsion towards the family court. Too many outcomes could be predicted depending upon which judge a case appeared before, and this was not a compliment to the family court.
In addition, Manitoba also included all crimes involving families as a dedicated adjunct of the family court system, along with the first “zero tolerance” policy towards domestic violence in Canada. The benefit of this system is that research is far easier to gather on family violence statistics, but the suspension of due process that came with the zero tolerance policy created significant problems. In August 2000, noted domestic violence researcher Jane Ursel noted that a 47% dismissal rate of all cases brought forward meant that alternative dispute resolutions outside the criminal charge model had to be considered, and police required “discretion” in the decision to lay charges. It became clear, even to domestic violence researchers like Ursel, that a conviction can not be obtained by the criminal standard of evidence without any substantiating evidence. A discussion regarding the practice of plea bargaining the poor on domestic violence changes is also needed, and will be presented in the forward section on Legal Aid Alberta.
Alberta must find a way to eliminate these problems. One way, certainly, is to allow contact with the judicial community from a more varied set of stakeholders. My observation here is that the Alberta family court has developed an almost exclusive relationship with the interests of the domestic violence lobby, with little or no consideration for other stakeholders such as the victims of perjury, false ex parte orders, gender biased custody decisions and bankrupting legal fees, that is, such people as are found in the non-custodial family community. There are great judges making excellent decisions, but these decisions are not followed by the brethen of the court, resulting in unfair and devastating outcomes for many. Several judges have developed hardened reputations for biased decisions and ill preparation on a regular basis that results in the public perceiving the courts to be unfair and corrupt.
Another problem, which will likely be solved by the establishment of a UFC, concerns the significant difference in the standards of justice provided by the Provincial Court and the Court of Queen’s Bench. It appears as though Judges in the Provincial Court are reluctant to review any evidence when both parties are present, and it is a common practice for these judges to refuse to review evidence or hear testimony to set any interim orders other than the ex parte order. These judges need significant training should any be considered for a UFC position.
The Task Force should also be aware of significant barriers to justice presented by the Court Services of the current Family Division of the Queen’s Bench. These staff are the only ones who have established rules which deny public access to family division files. Parents Helping Parents accessed criminal files and provincial court files, but was denied access to family division divorce files. The various court Acts do not give this division the right to withhold files from the public, and this severely limits a parties ability to obtain research and investigative support services for their legal matters. It is also the case that there have been some incidents of gender bias by these staff, particularly when unadjudicated allegations of domestic abuse have been made.
One staff person took an application to vary a custody and access order as filled out by a father who had lost custody and access as a result of an ex parte order, and ripped it in half in front of his face. As she did so, she said “you are an abuser, and you are manipulating the staff; you’ve already filled out several of these.” On the surface her use of “abuser” could have been referring to her perception that the man was “abusing” the court system, but it is also likely that a double meaning was intentional. She could not understand how a custodial father might frantically wish to fill out forms to rectify the total loss of his child, as though that would do any good. I would strongly urge some remedial training for the court staff so that the presumptions they make about files will be eliminated, particularly their unsolicited opinions about domestic violence allegations and ex parte orders. I also hope that the Task Force will investigate the denying of public access to family court files. A look at the exorbitant photocopy and file search costs may also be inorder, as they certainly pose a serious barrier to people who represent themselves.
We would also encourage the UFC Task Force to recommend significant funding resources to establish an effective court-attached custody and access assessment service. Some of the best systems in the U.S. include this resource, which frequently develop solid reputations for effective and modern clinical assessments that can be relied upon and trusted by the Court and the Public alike. Such court attached services are also immune to the need to provide reports which support the paying party. No case which includes allegations of criminal behaviour can proceed to settlement or mediation without an effective custody and access assessment, but many can not afford the prohibitive cost. A service, which has a good reputation for assessing credibility and following standard procedure guidelines, will reduce the incidence of perjury and obstruction of justice, and encourage earlier settlement of chronic conflict cases. It is notable that many high conflict cases include the scenario where one parent is attempting to eliminate all contact with the other parent and the extended family. An effective assessment service would greatly reduce the incidence of high conflict cases.
In summary, the good news is that the Edmonton family courts have several strong features, and a Unified Family Court will improve some of its weaknesses as described above. This presentation will conclude with a review of certain ills, which will only be cured by a pro-active commitment of the Justice system of Alberta to the principles of due process and honest testimony.
The Bad News
This is no war between the rights of men and women, for among the walking wounded are grandmothers, sisters, aunts and friends of the fathers who are all denied access to the children they love. This is a family affair, not a gender war. A gender war has allowed family law issues to be defined by a battle to choose winners and losers, where resources of the former are gained by taking from the latter.
Right now, the domestic violence lobby has almost overtaken the direction and commitment of resources in the last nine years of family law development in this province. This has created a delusional court that is predicated on the fallacy that all women who make allegations are always telling the truth, and the rules of evidence are suspended. It also suspends all due process to accused parties, usually men, who frequently are labeled as violent, as sexual predators, and as drug or alcohol addicted, without any witness or other substantiating evidence outside of a woman’s words. The domestic violence lobby has a right to be heard but does not have the only right to be heard. Its influence has distorted the court, and brought justice into severe disrepute. No where is this most apparent than in the making of the Ex Parte Order, which is the subject that follows.
The Ex Parte Order: A License to Perjury
The fear of domestic violence and how to prevent it has been a problem that has vexed modern societies for more than a decade. Extensive efforts have been made by government, police and other community organizations to reduce the dangers posed to female victims only. Men do not receive ex parte orders when they claim to be assaulted by their female partners, or harassed in abrogation of no-contact orders. I am at a loss as to what to tell men who are constantly telephoned by female partners who repeatedly breach their own no-contact orders. When women breach these orders, nothing is done; in contrast to when men breach them.
Unfortunately, the establishment of allegations requiring no substantiating evidence has created a simultaneous slide in the protection of due process owed to the accused, who frequently suffer from a decreasing right to hear charges made against them in a timely fashion, and no right to defend themselves against the allegations.
While the idea that domestic violence exists is indisputable, the problem with changing our tenets of justice to meet the problem, results in a simple and easy process by which women are given the exclusive opportunity to make false allegations without penalty. This is especially true at the onset of divorce proceedings and through ongoing child access problems, when men are most vulnerable to these allegations.
It is not uncommon for serious criminal allegations of violent assault and child abuse to be made in the sworn statements of the ex parte order, claims which have never been reported to police or child welfare authorities. No where in the vaunted Protection Against Family Violence Act (June 1999) does it spell out any penalties for making a false statement. Ex parte orders are frequently made without a returnable date, as is also required by the Act, making such an order very easy to obtain and very difficult and expensive to overturn. I would like to ask the Task Force to examine the court records of this court and search out charges of perjury arising from the making of a false statement to obtain an ex parte order. You will not find one instance, even when the claims are eventually disproven in court. Perjury is rampant and the judiciary does nothing to stem the tide, nor does it mete out any penalties for the obstruction of justice in their courtrooms. In fact, the best liar usually wins.
Are We Fueling Violence?
No matter what happens in the future, I won’t soon forget the sights and sounds of the alleged confession made by Craig Anderson following the divorce-related murder of his wife, Lisa. The media accounts of this tragedy have not suggested that Mr. Anderson had a long history of violence during his marriage or even subsequent to his divorce. What it looks like is a typical, middle class male was driven over the cliff of reason, and I wonder if we are ready to ask ourselves “why”. Could it be that he lost his sanity when he discovered that a person could go to court and change his life circumstances without even notifying him or allowing him to be present? In the guise of protection from domestic violence, the court routinely issues ex parte orders which can change custody, access, property and maintenance provisions of all previous orders made by the court. These ex parte orders are available to women only. Are we ready to believe that this complete usurpation of human rights and due process can cause some people to snap into unpredictable insanity?
No one condones such horrors, for they traumatize the entire community and cause personal damage that few people ever fully recover from. I can’t help wondering, however, if Lisa Anderson would have been alive today had the court made its decisions in an honest way, giving both parties an opportunity to make their cases and defend themselves. Instead, they slithered behind the back of a person who had a long history of legal conduct before the court for many years. We will never know if a calm recognition of the rights of both parties would have prevented this horror show, but I am convinced that the ex parte order summarily eliminating Mrs. Anderson’s legal duty to pay Mr. Anderson $800 in child support contributed to her death. No man has ever succeeded in eliminating such a duty without due process to a mother. What a sick irony to think thatAlberta’s “protection” policies themselves may be contributing to the environment needed for these painful divorce explosions to happen in the first place.
I don’t mean to suggest that this might be all to the story, but here is more food for thought. Though I only moved to Edmonton two weeks ago, I can’t help but notice the multitude of publicly-funded resources for divorcing females and the total absence of same for non-custodial parents and their families. If Mr. Anderson had peer resources to reach out to who had been through or were going through the same experience, would he have been so isolated, so vulnerable to the extreme decision he finally made? Perhaps Bob Bouvier, President of the Equitable Child Maintenance and Access Society, said it best when he asked most recently, “Headlines…attract a great deal of public attention, but we ask, what are we as a society prepared to do to reduce divorce-related tensions?” I don’t know the answer, but I do know this: the family advocacy system of Parents Helping Parents has now made a commitment to exploring these questions with the people of Alberta. With all due respect, you can no longer afford to continue ignoring these questions, not unless you want to get used to seeing reports of divorce explosions occurring with ever-increasing frequency.
Two Sides to the Violence Coin
As has already been noted, we are all as a community completely horrified when a divorce conflict ends in the death of a female partner. This ultimate expression of rage directed outward by a man is what fuels extremism in the domestic violence debate. Yes, we are horrified, but we show a markedly lower concern when a man turns his pain inward by way of a divorce-related suicide. These are rarely reported, in keeping with the media policy of not publicizing suicide, but these deaths of divorcing men who can not bare the anguish of being separated from their children are of no concern to us. May I respectfully suggest that divorce rage can turn either inward or outward, and if you accept self-destruction than you are only tossing a coin to prevent the outward expression of violence. Perhaps when we start to care about men, we will reduce both kinds of destruction at the very same time.
Men Don’t Get Hurt
In the early days of our recognition of wife battery, we knew that many women did not report or seek help to leave their violent circumstances. Policy and services grew exponentially to change this problem of under reporting. It is also becoming recognized that domestic violence is perpetrated in fairly equal amounts by women as well, and yet, the problem of men who do not report assaults against them is not defined as a problem by the current justice system.
While a simple push against a woman will result in a charge against a man, only the most serious assaults against men will be taken seriously by the police and the court, if even then. In an unnamed case currently before the court, a young man reported an assault against him to the police. The alleged female perpetrator fled the premises before police arrived. Police found the young man with blood flowing from a cut under his right eye, and he was also bleeding from a human bite to his upper left arm. Both injuries left scars visible more than one month following the alleged assault. Forensic photos were taken that night, and the young man was advised to see a doctor the following day, who also recorded his injuries. The alleged female perpetrator was found at her mother’s home the following day, and was placed under arrest. Although she had no apparent injuries, she claimed that she was also abused. The police subsequently returned to the young man’s home and placed him in handcuffs to make an arrest. Though a no contact order is in place between them, the female has called and left four lengthy messages on voice mail, and has threatened that she will also be accusing him of criminal child abuse regarding their 2 year old son. Though we have instructed him to hang up and use Telus tracing methods to document the calls, no harassment charges have been laid against the female accused.
The court presumes that women are incapable of violence, and if they do hit, it is only to protect themselves. It does not take into account that some females are raised with the example of violent homes, and they also sometimes suffer from long-standing psychological problems, which make some women more prone to violence. In addition, we presume that “men can take it” or prefer to believe that it is not possible for a woman to hurt a man. We fail to remember that size does not always matter when a violent personality is involved, and the largest person is not necessarily the most violent. It is a certainty that men can not automatically obtain protection orders or ex parte orders when they claim to be the victims of violence.
When women kill, media reports are usually buried in the back pages, and the strategy at trial is almost always a battered woman’s defense. No evidence of a history of violence is required in a Canadian court room, as we have been successfully convinced that no evidence is needed to believe that a history of violence is present. One Albertan case involved a woman who killed her partner while he was in the bathtub. Another woman’s case was lauded as a victory for women when she was acquitted of hiring a hit man to kill her husband, who turned out to be a police officer. These cases abound in the back pages of newspapers right across the country. Less frequent is the recent result of the Canadian dentist convicted of manslaughter in the killing of her husband. The U.S. jury did not accept her claim that she was fighting for her life when she repeatedly stabbed her sleeping husband, perhaps because there was not a mark on her, while he was obviously turned toward the wall and sleeping when he was attacked. It would appear that murdering men is not legal in the U.S., as it is here in Canada.
Legal Aid: A Barrier to Justice in Family Law
Given the complexity of family law cases, particularly when serious allegations are being made, most people would certainly benefit from effective legal representation, if this were an ideal world. Some mention needs to be made about the exorbitant costs of family law proceedings when dealing with Senior lawyers, but a more troubling barrier to justice is likely the effect of the policies of Alberta’s Legal Aid Society.
It is very difficult to obtain a good and effective lawyer who is willing to work on the basis of a Legal Aid certificate. Although to many of us, lawyers sound like whiny baseball players when they complain about fees of $60 per hour, the fact is that lawyers rarely submit an itemized bill for an hourly rate of payment. Nearly all family law matters that do not go to trial are paid on a bulk fee basis, a flat rate for services rendered. I am advised by some Alberta lawyers that the accounting process Legal Aid implements for the hourly rate of pay are so byzantine, that an attorney can spend 3 to 10 hours of additional time on the billing process alone, with no guarantee of success. The bulk tariff rates, however, are paid immediately and without question.
Since bulk rates are all less than $1,000.00, the less a lawyer does, the more profitable the legal aid case becomes. It is not uncommon for lawyers working on legal aid cases to accept far too many cases in the knowledge that none will be well prepared. Extra filings, disbursements, letters, meetings, hearings, examinations, affidavits and even witness interviews are sparse if not non-existent in the legal aid file.
The pressure to reduce work for limited pay results in an ever-increasing number of people who believe they can do a better job themselves by representing their own interests before the courts. The encouragement Legal Aid gives to the bulk tariff method of payment also creates a tremendous pressure to resolve the case by consent or plea-bargaining. “Plead them out – settle it out – move em out” – may well be the motto of lawyers representing legal aid clients. The sooner a case is settled, the more profitable a legal aid case becomes to the lawyer. This frequently results in severe dissatisfaction with the legal profession and a bitter aftermath of resentment towards the courts as well.
This is the snappily titled Alberta system of “judicare”, as it tries to mimic the medicare system of service provision. When Legal Aid has a dedicated set of lawyers in a family law division, lawyers in those divisions rely on salary remuneration and are not pressured by the painstaking accounting system. The quality of legal representation does go up quite significantly, and expertise for family law matters increases rapidly without resorting to the high conflict tactics of a well-paid, private lawyer. I would like to request that the Unified Family Court Task Force use some of its influence to establish a family division with staff lawyers for legal aid clients.
Unlimited and Accountable Power – Perceptions of Child Welfare Law
There are few positive comments made about the power of Alberta’s child welfare system, nor will you ever hear that the child welfare system is doing a good job for children. The current fallacy that says child welfare is merely an equal litigant to opposing parents for the custody of children is fooling no one at this time. Lawyers for the child welfare system are not restricted by the limitations imposed upon Criminal Prosecutors, as child welfare lawyers “take instructions from their client”. Criminal Crowns, on the other hand, frequently reduce the number of cases set for trial by dismissing charges where evidence does not support the conclusion that the accused “likely committed the crime”.
Though mistakes are made, the criminal system is blessed with a system of case review, which acts as a check and balance on the sometimes-eager investigations of the police. This is not the case in child welfare matters, as the investigating social workers pass judgement themselves on their own investigations. As well, an unlimited legal dollar to spend makes it easy for the child welfare system to stretch matters out and thereby increases the likelihood of settlement. The child welfare system frequently takes advantage of poor and uninitiated clients, who accept the expert consultants favoured by the child welfare system. It is not uncommon to see a 30 page report slamming parents that are based on 1 or 2 hours of interviews. These practitioners are frequently underpaid, and can be counted on to see the case according to how the child welfare system also sees it. Consistent failure to find in favour of child welfare will soon find a practitioner taken off their preferred practitioner list.
It is also not uncommon for Child Welfare social workers to unilaterally suspend access orders made by other courts, when children are apprehended from a custodial parent, without examining the possibility of keeping children within the family. One such case involves a mother of six children as fathered by five different men. Family members related to three of those children, including fathers and grandparents, have all offered to care for the children while problems in the custodial parent’s home are sorted out. Instead, the child welfare office has in this instance asserted that the sibling relationships among the children are more important in the long term than the immediate care requirements of the three children whose families are known to us. Of course, this does not apply to their own separation of the siblings throughout several foster homes.
In other instances, it is routine for child welfare to separate siblings when the plan is permanent foster care. The sibling relationship is therefore very important only when they say it is. It is alleged that this young mother is working as a prostitute (via her own affidavit) and is also attempting to quit smoking crack cocaine. She also has other prostitutes living with her who provide child care when she is allegedly working her shift on the streets. Rather than exploring possible alternatives to foster care for these children, the agency has established a course of returning the children to the mother. Family members were required to hire attorneys to re-establish their access rights as summarily dismissed by child welfare. At no time did these family members of the three children ever say that they would not facilitate the sibling relationships, by consent order if necessary. In this case, the mother gave her consent to the paternal families in order to avoid foster care for her children. This consent was meaningless to the child welfare office involved in this case.
It is suggested to this Task Force that, where a child is apprehended by child welfare authorities, other family members should be entitled to apply for ex parte orders to obtain an immediate review of alternative resources available to apprehended children. As the above noted case demonstrates, the child welfare system’s anti-family pose, its gross financial and power superiority, and its decisions which defy common sense, have all contributed to a very poor reputation that garners no respect in the community of families it serves.
A Unified Family Court may bring some measure of fairness and accountability to the family law experience of the child welfare system, and any improvement would be gratefully appreciated by most of us who have had to deal with it.
A Few Final Thoughts
There can be no question that a Unified Family Court is the wave of the future and holds the potential for significant improvements to the family law process. Eliminating the excess of process options will likely reduce costs for the non-legal aid client, and may reduce the comparative disadvantage currently experienced by legal aid clients. It will not solve all the problems currently inherent in the family courts of Alberta – for that we will require a return to the principles of due-process, and evidence review for allegations of criminal behaviour. Only identification and prosecution of perjury before the family courts will truly rehabilitate the miserable opinion currently held by the public toward the administration of family law in Alberta.
May I thank all Task Force members in advance for their thoughtful consideration of this submission.
__________ oo0oo ____________
Family Advocate, Parents Helping Parents
 Inscription on the façade of the courts of justice in Washington, D.C.
 To be discussed in a later section.