Q&A: Are the courts failing children in high conflict custody cases?

The custody battle over two young sisters found dead in Oak Bay last week is raising wider questions about whether the courts are protecting children in high-conflict custody cases.

Public court records have revealed a legal fight over parenting time and financial support between the estranged parents of Chloe and Aubrey Berry. No one has been charged in connection with their deaths, but police say the sisters were victims of a homicide.

Victoria-based family lawyer Trudi Brown, winner of the Law Society of B.C.'s Excellence in Family Law Award, spoke with On the Island host Gregor Craigie about dispute resolution in family law.

What does a good dispute resolution process actually look like?

A good dispute resolution process actually doesn't involve the court system at all.

Certainly, people are getting much better results with less animosity if they can go through either a process of mediation or a process that we'll call collaborative law where people agree not to go to court.

Quite often we involve people like divorce coaches who can be counsellors but help people through the process, and custody specialists, who will in fact give advice about what's good for the child in question.

What factors lead to what lawyers call "high-conflict" custody cases?

Any kind of mental illness, any kind of addiction issues … can create huge problems in terms of what we refer to as high-conflict custody matters.

People have to recognize that they have to put aside their own wishes and wants and look at what's best for the kids.

The problem is going through any kind of separation is amazingly stressful for all the parties.

Financial stress plays big role

I personally say to all my clients, you shouldn't go through a separation without getting some kind of counselling because it really is one of the worst things that people can do in terms of high stressors.

At the same time, you've got kids who are going through a complete re-evaluation of their life, and they're confused and upset. And financial issues play a big role in this.… When you separate you now have two homes on the same income.

How does financial distress and the lack of legal aid funding affect these proceedings?

Legal aid is woefully underfunded in this province, particularly for family matters. And so people end up in court [without a lawyer] not knowing the process, and they quite often don't do that well for themselves.

You also have to remember that there are two kinds of people that go to court without lawyers: one are the people that can't afford lawyers and can't qualify for legal aid; and then there are those people who don't necessarily like what their lawyers might have told them.

How difficult are these cases for the judges making a decision?

They're tremendously difficult. We try and do things like have psychologists do custody and access reports, we try and provide all of that information, but you're still dealing with the fact that if you've got two parents who cannot cooperate, it doesn't really matter what kind of parenting arrangement you put in place.

If they're not really happy with it and are not prepared to work with the other parent, you've got a problem.

Do the courts and judges have enough resources that they need to handle sensitive custody child support disputes and do so in a timely way?

Absolutely not. We don't have enough judges to start with to get anywhere in a timely way, and we don't have any resources that judges can necessarily refer people to.