“My son can’t see me. He doesn’t know why,” the man said as his sad eyes looked down and his tears dropped on my desk. He tried to control his trembling voice but couldn’t. The worst thing about this was that three weeks earlier and without him even knowing, the judge had granted an ex-parte protection order disallowing him from contacting his ex-wife and son.
That judge was of course not told that the ex-parte application was meant to take away his son from him to pressure him to pay her more money, and that this had nothing to do with his ability to parent and his love for his son. The order was granted purely based on what she told the judge about how, after two years of separation she was now afraid of him and didn’t think he was safe around his son.
Actually no, the worst thing about this story was that somewhere, there was a four-year old child being confused as to why his dad, who saw him all the time, now was not seeing him anymore. After a few days, that confusion turned into him feeling abandoned by his father — one of the closet people to him in his life. Someone who made him feel loved and secure. He didn’t understand what had happened, and that caused him deep, undeserving damage — possibly for the rest of his life.
The ex-parte protection order
The judge was not to blame, really. He made the protection order but also said the order could be “set aside” on five day’s notice. For those who don’t know, it means the father could go to court and change that order to see his son on five day’s notice to the mother. But this was not going to work. That is because for two years, Canada has experienced an extreme shortage of judges and lack of timely hearings. This has made it impossible for family law litigants to have their matters heard before the court for several months if not years. In this case, five days really meant nine months.
My client thought that on five business day’s notice, he could tell the judge his side of the story and explain that he has never been harmful to his son or his mother. That the mother wanted more money out of the assets and used his son to get to that goal. She knew that taking away his son was going to cause so much pain for him and his son, he would do anything minimize it. It was the easiest and quickest way to get to that goal.
He didn’t worry much about having to go through lawyers paying a lot of money to see his son. What mattered to him was time.
Five days to set aside a protection order is not much. We quickly prepared the paperwork and booked the next date to go in front of the judge to set the protection order aside. On the day we attended court, one of the first things the judge said was that there was not enough court time. We were to go to the case manager’s office and book a full day hearing. That date could not happen until nine months later. That is nine months of the child going without seeing his dad.
We family lawyers see this problem happening way too often in every province and in every court. Judges do too, I assume. We all have a responsibility towards children and their future when they are caught up in parental fights. That includes making sure they are not traumatized because of adult decisions and court delays.
The solution to ex-parte protection orders
There is a simple solution for this problem that happens almost every day in different shapes and forms in our courts. Although not perfect, there is less harm in it and it will do wonders to protect children’s emotional well-being and judicial fairness. Other family lawyers seem to agree:
1) If a parent seeks a protection order in the absence of the other parent or on an ex-parte basis, judges should ask whether there is any documentary evidence to support such an extreme measure which means children can’t see their parents. The documentary evidence can include police records, doctor notes, criminal charges or ministry involvement;
2) If no documentary evidence is given but a protection order is still a good idea based on precaution and what one parent says, then:
3) The protection order must have an expiry date. So instead of ordering that it can be set aside on five day’s notice, it should say that it expires in two weeks unless a parent applies to have it extended.
4) This ensures that after two weeks, both parents will have a chance to talk to the judge, at least for a few minutes to tell him or her why the protection should or should not continue. This also gives them a chance to talk to each other and see if they can resolve their issues in a timely manner.
5) Despite the shortages of judges in almost every level of courts in every province, Courts usually do have at least 10 minutes to listen to people. Especially when children are involved. Ten minutes is better than no time or waiting for nine or more months to get in front of a judge to litigate everything comprehensively.
We should not strive for true justice when our resources and limitations don’t allow for it. We should strive for some justice instead of none. Allowing someone to talk for 10 minutes is better than not letting them talk at all. Setting an expiration date for a protection order will ensure that our courts are compelled to give more time and attention to children than other issues like money and support.