I met with my client after supper on a Friday in the vestibule of a church. It was near my place and, it being a pleasant spring evening, I walked there, pushing my then-infant daughter in her stroller. He was a regular at this particular church, and Fridays were reserved for family social events. His young children were also at the church – a rare and special occasion, authorized in this instance by the family court. The child welfare officer was due to return shortly so we chatted only briefly before he signed over his $2700 tax return and rejoined his children for the hour that remained.
The money, as you might have gathered, was to keep his account with our firm current so that we would continue to represent him and his wife in their efforts to block the province’s request to amend its protection order from temporary to permanent guardianship of the children. That was 14 years ago. I was an articling student at the time and while so much of the 9 months in which I was involved in that case is burned indelibly in my mind, for the purpose of this column I offer the anecdote as an example of how fully and unreservedly people can find themselves surrendering to the operations of the justice system when circumstances bring them within its orbit.
This man was not wealthy and, as a skilled labourer, often had to travel for weeks at a time to where the work was. His wife, not long before temporarily resident in a psychiatric facility and still under periodic observation from her supervising physician, was doing well, but not yet re-employed. By the accounts of their many professional supporters (clergy, medical and other), they, individually and as a couple, were making excellent strides and demonstrating stability and capacity previously considered by the authorities to be well beyond their grasp. But it was not enough. In light of their prior lows, the recency of their turnaround and the perceived fragility of their situation (in part having regard to the potential impacts of his work-related absence on her state of being), the province and its representatives remained convinced that the best interests of the children would be served by securing permanent guardianship as a precursor to facilitating the adoption of the children by the couple who had for over a year served as foster parents.
During the term of my involvement, dozens of players came and went. Court clerks, child welfare staff, lawyers, doctors, motions judges, therapists, neighbours, interveners and more. The only constant was the “system”. At its best, the system ensured that the best interests of the children remained at the forefront while allowing fair comment and fresh evidence from all sides. At its worst, the system would either grind down or strengthen the resolve of individuals, resulting epic battles or even dramatic capitulations in cases where simple conversation might have spared significant time and expense. Did we really need an emergency motion to determine whether the children should go trick-or-treating on Halloween?
For my clients, the system would consume all financial and most of the emotional resources at hand. There was some measure of satisfaction to be found when, following a 4-day trial, the judge determined that there were insufficient grounds to grant the province’s request and, further, that in light of the demonstrated improvement of the parents, the province should assist in re-integrating the family unit.
That result was rendered on a Thursday afternoon. The following Monday, I started my new job as telecom policy analyst with TELUS and two weeks later I was called to the bar. From that point and for the 13 years that followed, I was employed only by multi-billion dollar companies and, for a period, an association that represented several multi-billion dollar companies. This provided me with the professional luxury of looking at the “system” as a playing field on which to gain advantage or, occasionally, to do battle. Professionally, I did not need to see it as something that overwhelms the participants or that compels complete surrender. I’m proud of the work I did and the results I achieved in that environment, but from a distance and with the benefit of hindsight, I’m better able to recognize that, professionally, I had become a stranger to the justice system as it is known and most commonly experienced by the vast majority of Canadians.
In our personal capacity, most of us will not find ourselves demonstrating our fitness as parents before a court, defending ourselves against serious criminal charges, or even involved in a large and complex civil litigation matter. But the probability that we, or those close to us, will have a brush with the justice system is reasonably high. Contested support or child custody matters, probate, tax, real estate, employment or property disputes, and certainly traffic matters, can all personally ensnare us in the web of the justice system. These first hand experiences, perhaps more so than our professional experiences (which may not be the case for all, but is certainly the case for me), provide the insight into the system as it truly is. When your personal affairs get enmeshed in the justice system, escape or even separation is not simple. From this vantage point, we begin to recognize that facilitating access to justice is not about making things better or easier for other people. There are no other people. There is just us.
A year after that 4-day trial, I ran into the crown counsel who argued opposite. He told me that a month earlier my former clients voluntarily relinquished their custodial claim to the children and acceded to the province’s request for permanent guardianship. Their personal progress stalled and their resources depleted, the couple had apparently come to the conclusion that the best interests of their children could be met by the long-time foster family.
As a father, I often think about that day in the church vestibule and the struggles of parents that have to seek approval for the chance to spend mere hours with their child. As a lawyer, I’m getting reacquainted with the idea that life, law and engagement with the justice system isn’t academic and isn’t just something that other people deal with or that we deal with on behalf of other people. Finally, as a person – as one of us – I’m beginning to ask myself what I can do to ensure the justice system becomes more about justice and less about the system. No easy answers, but a goal worth pursuing nonetheless.
[This post originally appeared June 2012 on Slaw.ca. See the comments here.]