JUSTICE

Tossing children into the balance

Thomas Hopkins April 27 1981
JUSTICE

Tossing children into the balance

Thomas Hopkins April 27 1981

Tossing children into the balance

JUSTICE

Thomas Hopkins

It all began innocently enough in Vancouver when University of British Columbia Professor William Polglase decided to fight his estranged wife’s court action. His lawyer, Donald Moir, argued that Rosemary Polglase’s applications in provincial family court for custody of their 14-year-old son, a restraining order against her husband and sole occupancy of the matrimonial home were not within that court’s jurisdiction. The B.C. Supreme Court agreed and found in William Polglase’s favor. But the case posed a constitutional question that snowballed into the B.C. Court of Appeal (where the decision was upheld), and on to the Supreme Court of Canada, where a decision is pending. While other constitutional matters simmer in Ottawa, this case threatens to throw custody orders in six provinces into jeopardy.

If the B.C. ruling is upheld, and most attending the Supreme Court hearing believe it will be, it’s feared that every provincial custody order ever made in B.C., Alberta, Manitoba, Ontario, New Brunswick and Nova Scotia will be declared void. (Other provinces with federally appointed family court judges are not affected.) Literally tens of thousands of disenfranchised parents may be flooding into provincial superior courts to seek redress. Even worse, the possibilities for banditry, as children suddenly come up for grabs, may force custodial parents to adopt extreme protective measures, limiting their children’s activities. Ontario law clerk Roman Komar speculates: “There could be wholesale kidnappings. If a mother has custody of the children by a provincial court order, the father could scoop them up and he wouldn’t be in contempt.”

The administrative tangles also promise to be formidable as superior courts try to absorb the slack. In a report prepared for the chief judge of the Ontario family court on the impact of such a ruling, the authors postulate that as many as 50,000 new Ontario cases could appear on superior court dockets next year. “The prospective effect of the anticipated decision is staggering,” they warn.

At issue are the rights of the provinces under the BN A Act to assign their own judges to hear family law cases involving custody, occupancy of the family residence and restraining orders denying access to the child by the other spouse. The B.C. courts ruled that these concepts didn’t exist in 1867 when the BN A Act was drawn up, and that custody and access to children at that time was handled by superior courts. Provinceappointed courts may therefore be acting “unconstitutionally.” The question also casts doubt on the validity of adoption orders made in provincial courts.

But the less formal “shirt-sleeve” atmosphere of the provincial family courts will be the most stinging loss, according to custody counsellors and family lawyers. Lynn King, a Toronto lawyer, says: “Family courts are much quicker than others. It is also less intimidating for someone without a lawyer to go into family court.” Proponents of the use of provincial family courts also charge that the superior courts are too expensive, and too complicated procedurally, for the majority of family law cases. Already British Columbia has seen a rapid decline in the use of family court paralegals and social workers who usually help to cushion the strain of court. Says Halifax family court Judge Timothy Daley: “It would be extremely poor social policy to uphold the B.C. decision.”

Originally sharing these fears, B.C. implemented emergency “interim rules,” including the waiving of the $30 Supreme Court filing fee, immediately after the Polglase case was upheld in November, 1979. New superior court registry offices were added to handle the expected flood of cases. But in Vancouver the following year, only 150 of a projected 6,000 new superior court cases actually appeared, causing speculation that troubled families were letting their disputes fester instead of reporting them. Deprived of 110 provincial family court venues, families were apparently reluctant to travel to courts in larger centres. Says custody counsellor Jean Hannon: “This can be especially harmful for the children, who can go for four or five years in a troubled home.”

The puzzlingly low number of retrials in B.C.’s superior courts for families with void custody orders may be partially due to a desire to wait for the Supreme Court of Canada’s final word, which can come as early as this week.

But as well, B.C. lawyers have been advising losers in custody battles that new court fights would be pointless because they would produce the same result. “The court is very unwilling to change a de facto situation,” explains Barbara Nelson, chairman of the family law section of the Canadian Bar Association’s B.C. branch. “It would be loath to shuffle kids around unless there was sufficient new evidence to justify it; the fact that an order is void is not sufficient reason.” B.C. family court Judge Douglas Campbell adds, “It’s almost so terrifying that people don't want to know.”

The lack of reaction on the B.C. front hasn’t mitigated concerns in other provinces. Robyn Diamond, a family law expert in the Manitoba attorneygeneral’s office, predicts the effect on the courts themselves will be “chaotic,” and reflects wistfully on the first ministers’ conference in September when the provinces came tantalizingly close to agreement on a transfer of family law jurisdiction to the provinces. One solace is that if the Supreme Court does uphold the B.C. decision, the result could be a unified family court system—onestop family law shopping under a single jurisdiction.

But as the possibilities of the stillobscure Polglase case slowly become apparent, the most overlooked issue is the psychological well-being of the children involved. “One of the most important aspects of custody matters is that kids get a quick, early definition of what the scenario is,” says Toronto social worker Michael Blugerman. “If all that is open again, I can see kids being tossed around.”_>___

With files from Boyd Neil and Diane Luckow.