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  • Why???

    Explain this to me, please.
    When I read or hear about divorces, especially custody battles, I can't for the life of me understand why people are forced to endure the absolute hell that is family court. Why, in so-called developed and democratic countries where men and women are supposed to be constitutionally equal, are women still favored in family courts? Why do men have to jump through flaming hoops just to get equal parenting time with their own children? Why it is not 50/50 by default? Why does the "best interest of the child" principle so often ignore the critical role and importance of fathers? Who the hell decides what the "best interest" even means? Because from where I’m standing, it sure as hell looks like the only real winners in this brutal circus are the family courts and lawyers who profit from people’s misery. This isn't just unfair, it's a disgraceful, broken system. Why? Also, what to do with this sh-t?​

  • #2
    It's actually been moving towards 50/50. Not sure where you are or what is going on in your case but you should be able to get shared physical custody.

    Comment


    • #3
      Originally posted by Jurassic Park View Post
      I can't for the life of me understand why people are forced to endure the absolute hell that is family court.
      Because one or both of the parties involved in the matter went to court. There are a number of much better dispute resolution paths like mediation and/or arbitration and/or collaborative law that can be taken that are much more cost effective. But, once the court matter is set forward by one of the parties (or both) then you are stuck in the court system unless both parties choose to withdraw from the case and choose a better method for dispute resolution.

      As well, people create the hell in the court system with allegations that need adjudication by a judge to resolve. They stack them, create voluminous and often irrelevant nonsense that judges need to sort through because one or both parties think it is "relevant" to "winning". Which comes to the next point... The "winning" attitude that court imposes on both litigants.

      Originally posted by Jurassic Park View Post
      Why it is not 50/50 by default?
      It is technically. But, in the vast majority of cases brought before the court one (or both) parties bring forward allegations of "abuse" against the other party that destroys the default of 50/50 shared residency and joint custody. When this happens it isn't appropriate for mediation often and the next best path is arbitration but, that is an expensive route and people often see court as a "cheaper" means of arbitration through the public system. It is not.

      So, you are left with court to sort out the claims of abuse, bad parenting, and conflict between the parents. Courts rarely if ever see conflict free things in court on motions. The only time they see reasonable people is when they come with a fully formed settlement agreement made on consent. But, that is rare because a good agreement made on consent doesn't need court enforcement to be valid. But, these parents are those who can compromise and work together to come to these agreements. They are willing to COMPROMISE on their positions in the best interests of the children.

      Parents who are up on motion and for trial... They cannot come to those compromises and then stack allegations thinking they will "win" more by doing so. Children lose when parents do this. Big time.

      Originally posted by Jurassic Park View Post
      Why does the "best interest of the child" principle so often ignore the critical role and importance of fathers?
      They don't. Often in high-conflict court cases (or in the majority really) an allegation that challenges the simple "best interests" test are introduced and requires a judge to arbitrate those allegations against the best interests. So, clearly you are stuffed in a situation where one (or both) parents have made an allegation that requires a detailed evaluation, based on evidence, to evaluate the "best interests" against the "evidence".

      If there are no allegations raised then the default is 50-50 residency and joint custody. This happens in the vast majority of matters that do not go to court these days unless one of the parents compromises for another agreement. But, we don't see the reasonable parents who do don't hurl allegations like drones and missiles in war because, they settle and move on with their lives in the best interests of their children.

      As well, when you put parenting and children in the mix there are a lot of emotions which lead to both parties becoming extreme in their positions. Which snowballs into parental anxiety and more allegations which take even more time for courts to resolve. Costs often cause dramatic and high conflict cases to settle because the financial reality of fighting over who cut the children's finger nails more etc... are irrelevant and not worth the financial fight.

      Originally posted by Jurassic Park View Post
      Who the hell decides what the "best interest" even means? Because from where I’m standing, it sure as hell looks like the only real winners in this brutal circus are the family courts and lawyers who profit from people’s misery. This isn't just unfair, it's a disgraceful, broken system. Why? Also, what to do with this sh-t?​
      Judges if you are before the court decide. But, what the law really wants is for parents to decide amongst themselves what their children's best interests are and the VAST MAJORITY of separations are resolved this way. Parents become unreasonable when they mix their personal emotions into the mix and then raise allegations that require adjudication to resolve. When evidence needs to be weighed on the balance of probabilities then an arbitrator or judge need to do that. So they need to balance the BEST INTERESTS TESTS against the evidence raised by both parents to make the determination.

      Ultimately, its conflict between the parents that brake the system and those parties are to blame... not the system. Too many parents claim "abuse" for irrelevant things which prevents quick and reasonable resolution to matters. Angry parents, who want to seek revenge and "win" are the problem.

      Now, one could argue that if courts really laid down the costs against parties who engage in conflict this could end. It would send a strong message to negative advocate lawyers to advise their clients to be reasonable and not regurgitate so much court cluttering nonsense. Costs have been stronger since Izyuk v. Billosouv these days so the courts are waking up to the need to leverage this tool (costs) to create better jurisprudence that would make an undermanaged emotional parent reconsider and focus on the needs of the children over the need to "hurt" the other parent by "winning an advantage" over the other parent who they hate.

      Parents are the problem generally and not the system.

      Comment


      • #4
        Tayken

        It is only “technically 50/50 by default. Yes, some fathers who are in court get it (1 in 10? ) and I got it myself as well, but after years of living in hell, working for legal bills and not seeing my children for years.

        And I can see why many fathers would give up - far few can afford to pay lawyer, or have good analytical skills to become as effective as lawyer such as working dad. Good for him, but even he went thru hell and spent good part of his life and analytical skills on family courts instead of starting up some new IT Company and giving an employment to thousands Canadians.

        So it is only technically 50/50, and I am not even talking about false claims in criminal court against ex to hold ground in family court - very popular trick recommended by some unethical lawyers.



        Comment


        • #5
          Originally posted by Challenger View Post
          Tayken

          It is only “technically 50/50 by default. Yes, some fathers who are in court get it (1 in 10? ) and I got it myself as well, but after years of living in hell, working for legal bills and not seeing my children for years.

          And I can see why many fathers would give up - far few can afford to pay lawyer, or have good analytical skills to become as effective as lawyer such as working dad. Good for him, but even he went thru hell and spent good part of his life and analytical skills on family courts instead of starting up some new IT Company and giving an employment to thousands Canadians.

          So it is only technically 50/50, and I am not even talking about false claims in criminal court against ex to hold ground in family court - very popular trick recommended by some unethical lawyers.


          So you are talking about a low set of numbers then because only a small number of resolved matters go to court and through those paths. You can't compare reasonable people who settle out of court because we don't collect those statistics as a country. As well, you can't compare your matter to "everything". You are trying equate your unique situation to "ALL" cases.

          https://www.separation.ca/help-cente...oing-to-trial/

          Fewer than 5% of family law cases proceed to trial. But if you have filed paperwork with the court, you will be “going to court” in some sense, for introductory information sessions such as the Mandatory Information Program (MIP) session or a first appearance date, and for case conferences.
          https://www.yglaw.ca/what-is-a-trial-in-family-law/

          In fact, less than 5% of all family law cases proceed to trial!
          The Resolution of Family Matters in Canada: Beyond the Courtroom


          In Canada, the majority of family law matters are resolved outside of the courtroom. Despite the public perception that family disputes frequently culminate in lengthy and contentious trials, statistics and practical realities reveal that only a small percentage of such cases proceed to trial. The primary mechanisms for resolving family law matters include negotiation, mediation, arbitration, and collaborative law. Prevalence of Out-of-Court Resolutions


          Research and data indicate that less than 5% of family law cases in Canada go to trial. The reasons for this are multifaceted. For many individuals, the costs associated with litigation—both financial and emotional—act as significant deterrents. Trials can be prohibitively expensive and time-consuming, often exacerbating the stress and strain already present in family disputes. As a result, most parties prefer to explore alternative dispute resolution (ADR) mechanisms or negotiate directly with the assistance of legal counsel. Alternative Dispute Resolution Mechanisms
          1. Negotiation: Many family matters are settled through negotiation between the parties, often facilitated by their respective lawyers. This approach allows for flexible and customized agreements tailored to the unique circumstances of the family.
          2. Mediation: Mediation involves a neutral third party who assists the parties in reaching a mutually acceptable resolution. Mediators help facilitate productive discussions and guide parties toward solutions that reflect their interests and priorities.
          3. Arbitration: In arbitration, an impartial arbitrator hears both parties’ positions and makes a binding decision. While more formal than mediation, arbitration avoids many of the delays and costs associated with court trials.
          4. Collaborative Law: This method involves both parties and their lawyers committing to resolve disputes without litigation. Collaborative law focuses on cooperative problem-solving and prioritizes the best interests of all involved, particularly children.
          Judicial Encouragement to Settle


          Canadian courts strongly encourage parties to resolve their disputes outside of the courtroom. Case management processes, settlement conferences, and judicial mediation are examples of court-driven initiatives designed to promote resolution without a trial. Judges often emphasize the benefits of settlement, including reduced costs, quicker resolution, and greater control over outcomes. Benefits of Out-of-Court Resolutions


          Resolving family matters outside of court offers numerous advantages:
          • Efficiency: Out-of-court processes are generally faster than litigation.
          • Cost-Effectiveness: Avoiding a trial significantly reduces legal expenses.
          • Flexibility: Agreements reached through ADR can be tailored to the unique needs of the family.
          • Reduced Conflict: Collaborative approaches foster communication and cooperation, which is especially beneficial when children are involved.
          • Privacy: Unlike court proceedings, which are typically a matter of public record, ADR processes offer greater confidentiality.
          Conclusion


          While trials remain an essential component of the Canadian legal system, they are the exception rather than the rule in family law matters. The overwhelming majority of disputes are resolved through negotiation, mediation, arbitration, or collaborative law. These approaches not only alleviate the financial and emotional burdens of litigation but also empower families to create solutions that best meet their needs. By understanding and utilizing these alternatives, individuals can navigate family law matters more effectively and with greater focus on resolution and healing.

          Comment


          • #6
            Hi @Tayken,

            I think you are missing the point of OP - he is claiming that courts aren’t nice for regular people and you are arguing that it is much better for those who don’t go to court or settle. That’s an awesome argument, with except it matches the OP narrative.

            Best interest of a child is not to live for years in hell of manipulation by one or both parents while
            parents are going to court, and it takes just one parent to go to court - other one automatically gets there, even if he or she wants to settle.




            Comment


            • #7
              Originally posted by Challenger View Post
              Hi @Tayken,

              I think you are missing the point of OP - he is claiming that courts aren’t nice for regular people and you are arguing that it is much better for those who don’t go to court or settle. That’s an awesome argument, with except it matches the OP narrative.

              Best interest of a child is not to live for years in hell of manipulation by one or both parents while
              parents are going to court, and it takes just one parent to go to court - other one automatically gets there, even if he or she wants to settle.
              1. Strawman Fallacy – You misrepresents the opposing argument by suggesting that the counterpoint (that settlements are preferable) actually supports the original argument (that courts are bad for regular people). This subtly distorts the discussion by framing the counterargument as if it aligns with the original claim when it does not.
              2. Red Herring Fallacy – You shift the focus from the original discussion (whether courts are bad for regular people) to the emotional impact on children, which is related but not directly addressing the argument being debated.

              These fallacies create a misleading rhetorical effect by subtly changing the subject and mischaracterizing my stance.

              Try again...

              Comment


              • #8
                Tayken - if you have actual arguments to support or contradict what I said I’d be happy to hear them. The way it is now you are trying to avoid the discussion by posting some off topic.

                Comment

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