Reba McEntire has a country-western song called “What You Gonna Do About Me?” It is one of the few popular songs which addresses divorce from the child’s perspective: one line asks “Is it Daddy on the weekend, Mama rest of the week? Will I have to make new friends, live on a
different street?”
Custody disputes can defy just resolution. They are often given a priority over other cases and very few dispute the need to do our best in resolving them. They are still however too frequently left to proceed at a glacial pace and high-conflict cases seem to gather mass and force as they roll down the legal slopes.
The combination of interpersonal trauma (including to the professionals at times) and the frequent absence of adequate resources mean that process is constantly running up against – and through – budgets and adding legal trauma to people’s lives.
For decades now alternative procedures have worked away at encouraging early and consensual resolution. The most recent BC innovation has been making arbitration fully available to disputes under the Family Relations Act. As a result, families can now avoid a family trial by settling their disputes on their own or with the assistance of collaborative lawyers (who do not go to trial), or family mediation, or family arbitration. Indeed, Judicial family conferences are oriented more than ever before to encouraging consensual resolution.
Ironically there are signs that the net result of this is that only the most difficult cases now get tried in the Court. One theme of the case reports is the frequent appearance of high-conflict litigants—often self-represented.
Leigh v. Rubio (2022) may be an illustration of some of these developments. Mr. Leigh and Ms. Rubio lived in Peru and were married in 2012. Shortly after they had a child in 2013, they separated and they each brought multiple abuse allegations against each other. In 2018, the Peruvian family court awarded temporary joint custody to the father and mother of the son and in 2019, the mother fled with the child to London, Ontario. The father applied to the Ontario courts for the swift and safe return of his son as the Hague Convention guarantees in articles 1, 11, and 12 (barring certain exceptions, the Court must order the prompt return of the child if the kidnapping has happened within a year of the beginning of the proceedings and must provide reason for any delay that exceeds six weeks).[1] A year and a half later the judge concluded that while the child was wrongfully removed in breach of the Hague Convention, there was a “grave risk of harm” to the child in returning him to his father.
On appeal the Court of Appeal also concluded that the removal had been wrongful, but since the child had become estranged from his father, it was too late to return the child. The appeal court also acknowledged the effect of delay saying, “when, as here, there is a delay, the abducting parent gains the advantage.”[2]
The mother was able to harvest the fruits of delay despite the appeal court agreeing that the judge’s analysis failed to take into account the prior decisions of the Peruvian family court regarding the joint custody and the importance of the father’s relationship of the child. Second, while the judge scrutinized the evidence of the father, she seemed to accept the mother’s evidence as fact. So, in effect the Hague Convention was given the back seat to a determination of custody that was hijacked by the mother’s relocation and delays in the system.
Who was responsible for the delays in this case? Or was it even delayed by the standards of the Court? At bottom, the Court of Appeal’s neutral language of the effect of “a delay” lets the trial court off the hook in what may have been a savage injustice as the main consequence of immigration to Canada.
Hague Convention cases put in bold relief our failure to deliver timely justice even in what is a time-dependent case. When a child is removed into a new country wrongfully the entire purpose of the Hague Convention is to deprive the parent of successfully trumping the court. If anything the result in Leigh supports the conclusion for a determined parent that alienating your child from your former spouse should be a high priority as it represents the best defence against being held to account.
The sadness in Reba’s lyrics comes precisely because a child’s life is so deeply affected by the decisions of the adults in their lives. The harvest of a successful relocation coupled with alienation is that the child grows up in an environment framed by the bitter atmosphere that afflicts such separations.
Active steps need to be taken to avoid having the courts be mere observers of this keen form of human trauma, or even worse passive collaborators. As a start the high conflict cases remaining in the system demand more, rather than less, active intervention and timely resolution. As they have demonstrated the failure of consensus the system needs to ensure that measures are taken to at least bring the judicially involved unhappiness to an end.
[1] https://www.hcch.net/en/instruments/conventions/full-text/?cid=24 Articles 1, 11, 12.
[2] https://canlii.ca/t/jrf23 [31].
