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The Injustice of Justice in Family Law

July 5, 2018

Oh, what great naivety we have when it comes to justice.

There is a great belief among many that holding one’s truth and going before a judge that one’s truth will prevail, and justice will be done. Myth.

One’s truth does not translate to justice.

One’s truth, even supported by facts is still subject to interpretation. And of course, there is also the truth of the other. So, whose truth shall prevail in a conflict of truths?

And then there is the other issue of by what degree shall something be taken as true. There are two standards in court and which is applied depends on the particular court. There is the standard of “beyond a reasonable doubt” as is seen in criminal prosecution and there is, “on the balance of probabilities” which is seen in family law. Clearly the latter leaves much wiggle room: On the balance of probabilities.

It is no wonder that many persons are left at least disenchanted and some absolutely shattered, particularly in family law, when verdicts do not reflect their truth. Such though is the risk associated with the contest of truths in this arena. To add, the concern is not even with truth per se, but the concern or standard for decision making is “best interests of the child”. If the former “balance of probabilities” provided much wiggle room, you can imagine that the determination of “best interests of the child” may in fact create even greater space for interpretation and wiggle room.

Given the subjectivity involved, particularly in family court, even with reliance on as much corroborated evidence as possible and even in view of social science research, it is no wonder that many verdicts are met with disdain by at least one of the parties. And, when each continues to still hold true to their respective version of truth, is it any wonder that such an aggreged parent would seek to overturn such a verdict, appeal, resist, foot-drag and otherwise seek to undermine the outcome?

Court as a strategy of mitigating conflict becomes a folie à deux – a shared delusion that each shall win the day over the other; that justice will prevail, and the world will fall into order. That delusion is fueled by the other actors on the stage.

The lawyers hold to their winning strategies and the judges hold themselves as above bias, that their spill of the morning coffee will not influence their own patience or the previous evening dust-up with their spouse won’t influence their decision making, or that their own family history is separate from their thinking on the bench.

The influence of unconscious bias is ill-examined. Yet people entrust their lives and the decisions affecting their lives to others in this arena. People voluntarily subordinate their own power and control in negotiations to the will of this court.

Before drinking that cool-aid, consider the rabbit-hole to be entered and ask yourself, is there a better way? How might I maintain some semblance of control of the outcome, although perhaps not ideal, still livable?

Consider mediation. Consider having input into the decisions that shape your life and that of your child. Consider having an outcome that while not loved by either, is yet manageable by both.

Oh yes. You will have to forgo your version of truth for truth is not the matter. A livable outcome is.

Seek not justice in family court, but a way through life you can manage.

The challenges faced in entering mediation, a moment in time relative to your life must be weighed against an unsatisfactory court outcome that becomes your life.

Choose wisely lest you risk the injustice of justice.

My bias is clear.

I am Gary Direnfeld and I am a social worker. Check out all my services and then call me if you need help with a personal issue, mental health concern, child behavior or relationship, divorce or separation issue or even help growing your practice. I am available in person and by Skype.

Gary Direnfeld, MSW, RSW for counseling and support – to build your successful practice

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Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas and Georgina Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America. He consults to mental health professionals as well as to mediators and collaborative law professionals about good practice as well as building their practice.

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