Icebergs & Family Law
What does human nature have to do with icebergs, and for that matter, family law? Although most of us deal with human nature on a daily basis, we rarely seize the moment to think deeply on the subject.
Jean-Baptiste Molière was a 17th century French playwright and actor. He is considered to be one of the greatest masters of comedy in Western literature. In the Misanthrope, one of his most famous short plays, we read these timeless words: “Let us torment ourselves a little less about the vices of our age and be a little more lenient to human nature.”
The law (I am told) is about “reason,” not “emotion.” After all, if we really wanted to learn about emotion, we would have spent our days studying psychology and not the law. Instead, law school taught us how to “think like a lawyer.” Looking back at my years in law school and over my 24+ years in the business of law, I have come to wonder if I ever did get it. Truth is… I feel very much like an outcast amongst most of my colleagues, most times feeling quite vulnerable and distressed over the practice of law.
We can all vividly recall images of that deadly iceberg encountered by the Titanic. Icebergs, as we know, have the bulk of their structure under the water – 90%, I am told. That invisible part of the iceberg, under water, is dark, unknown, secret and hidden. This seems to be an excellent metaphor for the relationship of the law, to reason and emotion. As lawyers and judges, we focus on what is visible – above the water line: the conscious, logical, rational and factual. Yet, we give little thought to under the surface (remember 90%) where lies our emotions; hidden, powerful, mysterious structures we ignore. I submit that we chose to ignore this aspect of human nature at our peril.
While the Canadian Bar Association and the Law Society of Upper Canada constantly initiate public relations campaigns to improve the public perception of lawyers, the legal system unintentionally conspires to perpetrate the behaviours that stamp a different perception indelibly in the minds of ordinary people. In ignoring human nature, the system (that’s judges and lawyers – you and I) continues to attempt to persuade the public that we are good people, while denying them the experience of connection with real human beings. We are out of touch with human nature and as a result, we can hardly appreciate ever being lenient towards it.
Our clients may believe they only need our intellect and our legal knowledge. However, I truly believe that what they actually want, in fact deserve, to have the feeling that we are really present to them; that we are “connecting” with them, interested, not judging and that they are more than just another case.
Some time ago I argued a very difficult and emotionally trying motion. (I think you know what I mean.) It never ceases to amaze me how complicated life can be. I’ve come to fear (and I mean “fear”) bringing cases before the court, as I feel that there is increasing uncertainty and unpredictability in the outcome.
It’s quite understandable (and commendable) why more and more people are turning to Alternate Dispute Resolution, for at least one has some control over his/her destiny. When you go to court with a dispute… you just never know the outcome. In the end, there are rarely any winners.
Anyhow, back to that case. At the conclusion, I “lost” and I confess that I felt quite dejected, even though I knew I gave I did my best and gave it my best shot. To make matters worse, given the facts, I did not think it was an appropriate case to award costs. The judge ordered substantial costs which I knew would come directly out of my client’s children’s mouths. That evening I shared the event with my spouse, who immediately said: “Marty, what the judge did was punitive and heartless.”
I thought about what my wife said and about that court appearance and realized that for the presiding judge, the case had everything to do with “reason.” Nothing to do with “emotion.” I can see now that the judge was only looking above the water line and failed to give little thought that 90% below the line.
Law seems to offer an either-or choice: You can be objective (and be a good lawyer) or you can be emotional. Though I know that many of you will disagree, I still believe that we can have both. When we acknowledge the value of human nature, coupled with all its emotion, and when we struggle to learn to recognize and appreciate our own underlying feelings and those of others, this, in my view is the making of a good judge and a good lawyer.
As we integrate our thoughts and feelings, there will be greater personal and professional satisfaction, for we are no longer making the “law” a matter of cold, barren reason, but we’ve connected with real people who have real problems in our mutual humanity.
Can we learn from these words of Jean-Baptiste Molière? Are we so caught in our roles as “lawyers,” “judges” and “crown attorneys” that we’ve lost a sense of mercy – of understanding and compassion in our work? Is there a place where we can adjust and look below the water line and be a little more tolerant in our dealings with others? These are questions, I believe that we need to face and ask ourselves, for if we don’t, the system in which we work will be thrown to the vices of our age.
Marty Klein is senior counsel of Klein Law in Mississauga, practicing in the area of Family Law and through We Mediate, a new Alternate Dispute Resolution service.
Ten Tips for Success in Resolving Parenting Disputes
By Hon. Harvey Brownstone, Toronto, Ontario, Canada
- Be child-focused.
Parents must learn to love their children more than they dislike each other. Children need peace more than their parents need to win. Make your child’s well-being the focal point of every discussion you have with your ex-partner. Before taking a position on any issue, ask yourself, How will this affect my child? Ask your ex-partner to do the same. Never let a discussion with your ex-partner be about your needs or his/her needs; it should always be about your child’s needs. If you cannot agree on which solution would best meet your child’s needs, ask yourself how you and your ex-partner would have decided this issue had you remained together as a couple. In most cases, the answer would be to consult an expert. For example, if you and your ex-partner have a disagreement about your child’s health, or educational needs, or extracurricular activities, you should both be meeting with your child’s doctor, school, a family counsellor, or parenting coach. There are many professionals with special expertise to help parents resolve their disputes in a child-focused way. The first step to being a mature, responsible co-parent is to always put your children’s needs ahead of your own.
- Learn to distinguish between a bad partner and a bad parent.
The fact that your ex-partner was a bad partner does not necessarily mean that he/she is a bad parent. In my experience, most people who have been unfaithful to their spouses have actually treated their children very well. The way that a person treats his/her spouse in an unhappy relationship when no children are present may not be a good indication of how that person treats his/her children. It can be extremely difficult for a parent who has been mistreated by the other parent to accept that the child might see that parent differently and have a good relationship with him/her. Your child is entitled to get to know the other parent in his/her own right and to have a relationship with the other parent that is independent from your own. Even if the other parent is flawed, and even if restrictions or limitations must be placed on his/her contact with the child, your child can still have a safe and beneficial relationship with that parent. If your feelings about the other parent are standing in the way of your child’s relationship with him/her, you should seek help from a counsellor or therapist.
- Never speak negatively to the child about the other parent.
Your child has a right to a loving relationship with each parent, free of any influence or brainwashing. Moreover, your child needs and deserves emotional permission from you to enjoy his/her relationship with the other parent. It is unfair and cruel to place your child in a conflict of loyalties and make him/her choose between you and your ex-partner, as this deprives the child of an important relationship. Keep your thoughts and opinions about the other parent to yourself; never share them with your child. Never draw your child into your disputes with the other parent. And while I’m at it, you should never criticize the other parent’s family, new partner, or friends in front of your child. Nor should you tolerate your relatives, new partner, or friends denigrating or berating the other parent in front of your child. Make it clear to them that your child is to be shielded and protected from adult conflicts. Besides, it makes absolutely no sense to criticize people that your child is going to have a lot of contact with — what exactly do you want a child to do with this information? Most of the time a child will go right to the person who has been criticized and repeat everything you have said! Trust me, I’ve seen it happen thousands of times. One thing I have trouble understanding is why parents criticize each other’s new partners. If you were attracted enough to your ex-partner to have a child with him/her, why does it surprise you that someone else finds him/her attractive? In most cases, a new partner had nothing to do with the breakup and is going to have considerable contact with your child. You gain nothing by making an enemy of that person.
- Never argue or fight in front of your children.
No exceptions. If you and your ex-partner cannot behave civilly in front of your child, then don’t be together in front of your child. It’s that simple. I cannot understand why so many parents have trouble pretending to get along with each other for the few minutes it takes to pick up or return a child at access exchanges. It’s called acting, and it’s not that hard to do! Parents — even those who live together — pretend in front of their children all the time. It is even more important to do this after separation, because children need to be reassured that their lives will be happy and stable even though their parents live apart. Why are parents able to behave well in a courtroom in front of a judge (at least the vast majority do) but not in front of their own children? Don’t they love their children enough to say “hello,” “good- bye,” and “have a nice day,” and make small talk for the sake of keeping things peaceful and pleasant? Apparently not. This is shameful. There are lots of ways for parents to communicate with each other without the children being present: they can meet in person, or use telephones, faxes, letters, e-mails, and, of course, they can communicate through their lawyers. There is absolutely no good reason for parents to expose their children to their conflict.
Parents who continually fail to heed this advice should be prepared to welcome the child protection authorities into their lives. (See Chapter 11.)
- Listen to the other parent’s point of view even if you don’t agree with it.
If you are going to communicate directly with your ex-partner, remember that communicating with maturity starts with listening. You must learn to really hear what your ex-partner is saying, and understand his/her point of view. In any disagreement, try repeating back to your ex-partner what his/her position is, and the reasons why he/she is taking that position. I often do this in court and am frequently amazed by many people’s inability to correctly repeat back to me what their ex-partners have just finished telling me only a few seconds before! For that matter, I am equally amazed at how often I am accused of saying things I did not say — thank heavens we have transcripts in court that record exactly what was said! The point I am making is that you cannot decide whether you agree with someone if you have not clearly understood what he/she is saying. You must put your emotions aside and listen with your brain. Even if you end up disagreeing with the other parent, you should at least be able to convey to him/her that you have understood his/her point of view. Many times I find that once two people have clearly understood the other’s position, they are not as far apart as they first thought they were. Good listening skills are not acquired overnight, but post-separation counselling can be very helpful in speeding up the learning process.
- Consider mediation before giving the decision-making power to a judge.
Too many parents react in a knee-jerk way to each other’s conduct by running to family court without first getting legal advice or considering the impact of starting a court case. It is essential to consult a family law lawyer before taking any steps to resolve a conflict with an ex-partner. Your lawyer will explain your options and advise you on which one will best fit your situation. It may not be necessary to turn the decision-making power over to a judge. With the right help, you and your ex-partner may be able to arrive at compromises that will be better for your family than a court-imposed decision. Many thousands of parents have found mediation to be a beneficial problem-solving mechanism, so it is definitely worth exploring. For all the reasons given in Chapter 2, going to court should be a last resort, except for the special circumstances set out in Chapter 3.
- Separate your financial issues from your parenting issues.
In any family breakdown, there are two types of issues to be resolved: financial issues and parenting issues. These are completely separate matters and should be dealt with that way. With the exception of the intersection that might occur between access and child support (see Chapter 9), you should not allow your discussions and disagreements over property and money to enter into your co-parenting relationship. Your relationship with your children should have nothing to do with financial transactions or property transfers. Even if your ex-partner’s conduct regarding financial matters is making life difficult for you, this should not interfere with his/her role in your child’s life. It can certainly be a challenge to behave civilly with someone whom you think is trying to cheat you financially, but the ability to keep parenting issues separate from financial matters is a hallmark of maturity.
- Be flexible and reasonable in making access arrangements.
By far the greatest area of conflict between separated parents is that of organizing, carrying out, and enforcing access visits. Family courts everywhere are swamped with parents complaining of each other’s frequent cancellations, lateness, and a myriad of other misbehaviours. In a great many of these cases, a little common sense and fairness from both parents would have gone a long way toward resolving the problem. Do your best to follow the four simple tips about access given in Chapter 12. Be flexible and reasonable in accommodating your ex-partner’s work schedule and travel concerns, as well as changes in your child’s routines. Be considerate when dealing with access on special occasions and during vacation periods. You never know when you might need your expartner to extend the same consideration to you. Remember that access schedules must be adjusted to accommodate changes in the parents’ and children’s lives. This is not only normal but is to be expected, so go with the flow, don’t make a big deal out of every minor deviation from your access schedule, and be willing to make compromises for your child’s sake.
- Your children still see you as a family, so communicate!
As I have mentioned, you can be an ex-partner, but you are never going to be an ex-parent. If you truly accept that your children are innocent and bear no responsibility for your separation, then you know that they are entitled to be part of a family and to have their parents behave like family members, even though they live apart. Children who have contact with both parents need them to communicate with each other. I have had situations in which a child’s health suffered because one parent didn’t tell the other about the child’s medical problem, so the child didn’t get the proper medical attention in the other parent’s care. This is unforgivable. When a child is going frequently from one parent’s home to the other’s, it is vital that each parent know about anything important that has happened to the child while in the other parent’s care, especially an illness. It is also important for parents to have each other’s addresses and telephone numbers, unless there is a very good reason to not disclose this information — and even in that case, there must be some way for parents to contact each other (for example, through a third party) in the event of an emergency. Parents should have equal rights to obtain information about their children from schools, doctors, and other service providers. Parents should have equal rights to attend important meetings such as parent-teacher interviews or key medical appointments. Both parents should be able to attend special events in the children’s lives such as religious ceremonies, school events, sports tournaments, and music recitals. Even if there is a restraining order (or criminal court no-contact order) prohibiting contact, speak to your lawyer about the possibility of amending the order to permit at least some minimal form of communication regarding your child, even if it is in written form (for example, by using a communication book), or through a third-party intermediary. Your children need you to know what’s happening in their lives even when they’re with the other parent. If possible, find a safe and legal way to make this happen.
- Don’t hesitate to get help.
Family breakdown is one of the most stressful and painful experiences anyone can go through. The challenge of overcoming a failed partner- ship while at the same time developing a good working relationship with an ex-partner can be overwhelming. You do not have to do this alone. There are specialized counsellors and therapists who can help you, your ex-partner, and your child. Many community organizations offer excellent programs to help separated parents and their children make the necessary transition from ex-partner to co-parent. There are social workers and parenting coaches with the expertise to help you and your ex-partner develop a workable parenting plan. There are many books that offer great ideas (see “Suggested Reading”). Speak to your family doctor about a referral to a counsellor or therapist. It’s worth attending one meeting just to find out what services might be available to you and your family. Finally, remember that your family law lawyer is there to help you and can refer you to a number of community resources. Family law lawyers, like family court judges, know only too well that post-separation parental disputes are about much, much more than the law. Don’t let the legal aspects of your dispute interfere with the critically important human aspects. If you do, you may be doing a disservice to your children.
From Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of
Family Court by Harvey Brownstone © 2008 by Harvey Brownstone. All rights reserved. Published by ECW Press Ltd.
“AFTER FOURTEEN YEARS OF PRESIDING IN FAMILY COURT, ONE QUESTION HAS NEVER CEASED TO AMAZE ME: how can two parents who love their child allow a total stranger to make crucial decisions about their child’s living arrangements, health, education, extracurricular activities, vacation time and degree of contact with each parent? This question becomes more mind-boggling when one considers that the stranger making decisions is a judge, whose formal training is in the law, not in the family relations, child development, or psychology.” (Brownstone, 2009)
“Findings reported by a number of researchers (Arendell,1995: Durham Response to Woman Abuse, 2007; Pruett and Jackson, 1999) provide support for the theoretic assumption that Public Ordering (“going to court”) increases the intensity of conflict beyond the baseline level of intensity that separating/divorcing parties bring with them to family court.”(Ellis, 2014)
“Participation in collaborative proceedings such as mediation tends to not only decrease the intensity of conflict below the level brought to them by separating parties but also to improve the quality of post-separation relationships between them…”(Ellis, 2014)
The Family Mediation Resource Centre will be holding regular workshops to keep our community informed about important family mediation topics.
To view our upcoming workshops and register, head over to the workshops page.
Throughout our lives, we will all face adversity and confrontation, often simply because others disagree with our wishes, desires or opinions. These challenges can be as simple as what to watch on television or as complex as custody plans after a family undergoes a separation. No matter the issue, it is often helpful to a mutually beneficial resolution to understand why others are saying No, and how to turn that No into a Yes!
Many people feel that the only successful outcome of a negotiation is to get the other person to agree with everything that they are proposing to settle the matter. While this will certain leave one party happy, it will almost certainly cause resentment, frustration and dissatisfaction for the other party and may result in a repeat visit to the issue in the (near) future.
It is almost a given that some people will say No to a proposal as we are all somewhat conditioned to hearing No throughout our lives. No – you cannot have another cookie! No – you can’t stay out late on a school night! No – you can’t do your homework later! So, when we hear a No, it doesn’t always mean that the person who said No is convinced that is the correct response. It may be a conditioned response, especially in a new and confusing situation. The role of the mediator is to discover the true reason behind the response so that the core issue can be discussed. Sometimes, a No is simply automatic and may not have any conviction behind it. This is when everyone has to remain calm and not let emotions interfere. Instead of getting frustrated or upset, the path to agreement is to see the response of No as a step and not as the final decision. It is important to continue the discussion and to focus on the desired outcome, which is to find the best way to satisfy everyone’s objective. This is best accomplished by dispassionate discussions as to why each party feels that they are correct in their position, why they feel this way. One of the best methods of discovering this reason is to inquire as to the worst possible outcome of each decision, and then digging deeper as to why those fears exist. For example, if one parent feels reluctant to have the children stay with their ex-partner without supervision, it is important to determine what they fear will happen. Do they fear that the other parent will neglect the child’s needs or not care for the children according to their standard? And if so, what do they fear will be the outcome of this neglect? Will the children suffer any real physical or emotional harm, or will they be left to watch too much television? If real harm is feared, then the reluctance is justified and must be addressed, especially in regard to what has occurred in the past to introduce these fears. If the fear is that the children won’t be engaged and kept busy, then perhaps the resolution would be a schedule of expectations that each parent will respect and follow. Homework, hygiene and proper sleep and nutrition for children are usually a shared concern and one that may be easily resolved. If there are other underlying concerns, such as substance abuse or emotional manipulation, then the outcome may be complicated by these concerns. However, no resolution is possible without open and honest communication. Problems are usually easy to recognize – what makes the mediation process powerful is when both parents work together to both identify and offer possible solutions to turn those NO’s into YES’s!
– Jon Himelfarb, Father and Friend
Separation and divorce is a very scary and confusing time for children and they often do not have the communication tools that they require to let parents know what they are feeling or experiencing. The role of a parent is to educate and nurture their children to the best of their ability. However, the age of the children and the uncertainty that are feeling will have a huge impact on how they perceive the separation and how they understand the new family dynamic. There are many underlying emotions that the children will experience and parents may be excluded or unaware of the complexity of what their children feel or thinks. To help parents and children adjust to the family transitions, we have prepared some guidelines:
- Children will be better able to cope if their parents can be seen to share the responsibility for their welfare. So, telling them together about when and what is going to happen will show them that you can still be Mom and Dad even though you’re not together as a couple any more.
- While you want to be open and honest with the children, try to keep in mind what they can cope with at their different ages. They do not need to know every single detail about what has gone wrong, nor should they be involved in any conflict between you and your partner.
- Try to keep as normal a routine as possible going. When the routine has to change, introduce the changes as slowly as you can and talk them through with the children.
- Remind them that you will always be their parents even though you may not be a couple any longer
- Reassure them that it’s not their fault that you have decided to separate – this is between the two of you.
- Do everything you can to help yourselves adjust to your new situation, especially if you are the parent with primary residence. Children are very sensitive to their parents’ feelings and may see and be affected by a parent’s state of happiness or any lingering bitterness or animosity.
- Reassure them that you have decided to separate from each other but not from them; you are still their parents.
- Do not put the children in a position where they have to choose between the two of you. The children should never feel as if they have to choose sides, they should only feel that their parents love them unconditionally. Even a simple act such as asking a child to pass along a message or mentioning that financial or custody arrangements are interfering with a scheduled trip, may cause the children emotional distress.
- Always try and speak in a positive and encouraging manner about your ex-partner. Hearing a nasty comment about a parent will always cause a child to feel anger and distress, regardless of the source. Remember, the child is 50% you and 50% your ex-partner; denigrating your ex-partner is denigrating half of your child! That’s how your child will internalize it!
- Try and understand the situation from the child’s perspective. For example, your ex-partner may have a new romantic interest that your child will meet. While you may not approve of this new relationship, it is important not to send this message to the child. Your child may enjoy the attention and affection of your ex-partner’s new romantic interest and shouldn’t feel guilty or that they are betraying you because of this. Ultimately, your child will always grow and benefit from love, affection and encouragement and, while it may be difficult for you, keeping the child’s welfare in mind in this new dynamic is crucially important.
– Jon Himelfarb, Father and Friend