What a 4-year-old’s death says about Ontario’s strained family courts

Original Article: Toronto Star  |  Alyshah Hasham  |  16 February, 2020

Hundreds gathered at four-old Keira Kagan’s funeral on Thursday, as her mother read her favourite books “No Matter What” and “The Runaway Bunny” aloud to her a final time.

“Keira, you and mama will be together and love each other forever,” Jennifer Kagan said.

Halton Regional Police are still investigating the deaths of the four-year-old girl and her father Robin Brown. Their bodies were found on Feb. 9 in Rattlesnake Point Conservation Area in Milton with injuries police have said are consistent with a fall. Kagan and step-father Philip Viater believe it was a murder-suicide.

Keira had been at the centre of a long-running and “high-conflict” custody dispute, and, according to court documents, her mother had recently asked a court for an emergency hearing to limit her father’s access.

The details of the protracted three-year court battle expose some of the challenges family courts face in high-conflict cases, which researchers say have become more common in Ontario, straining an already over-worked family court system.

“I have never understood why we don’t have the same sense of alarm around delays in family court as we do in criminal court,” said Peter Jaffe, a professor at the University of Western Ontario and expert on family violence, speaking in general and not specifically about Kagan’s custody case. “For children in a child-custody dispute, there needs to be timely intervention and there needs to be ways to expedite matters.”

That means having enough judges with specialized training available to hear cases, and agencies with the resources to do parenting and risk assessments as soon as possible, he said. “The vast majority of cases that do end up in litigation involve serious allegations around domestic abuse, child abuse and mental health. They have to be a priority,” he said.

“There should be a better way of handling these cases,” said Claire Houston, a law professor at the University of Western Ontario who has researched “high-conflict” custody cases. While there is no clear definition of what those words mean, the cases usually involve hostility, parents who have an inability to communicate, allegations of abuse or neglect of the child or former partners, and a longer than usual time in the court system, Houston said.

It’s not clear why the number of these cases is going up, she said. One theory is that fathers who are increasingly more active parents are seeking custody more frequently. Another is that unaddressed mental health issues are fuelling conflicts.

High-conflict cases often require significant court time and resources from child protection services, with frequent returns to court. And with more cases, it will only get worse, said Nicholas Bala, a professor at Queen’s University and family law expert.

“We are seeing more cases and no increase in resources, or even cuts, so it takes longer to resolve these cases,” he said, speaking in general. “Cases are falling through the cracks.”

The legal fights are a financial drain on the parents — access to legal aid is only available below a very low income threshold, and some previously free services were cut or limited by the Ford government’s cuts to Legal Aid Ontario last year. There are now more self-represented people, which can, without the buffer of legal counsel, worsen the the hostility, Houston said. In some instances, the drawn-out and vicious litigation itself can become a form of abuse.

Family lawyer Russell Alexander says upcoming changes to make the language of the Divorce Act more neutral will reduce a harmful “winner-loser” mindset. The updated act uses words like “parenting time” instead of “custody” and “access.”

Alexander said the government could do a better job letting the public know about ways to avoid long and protracted custody battles, including mediation.

He practices collaborative family law, where both parties sign a contract agreeing to treat each other with “respect and civility” in pursing common goals — like the best interest of children — and not to go to court.

But for those cases that end up “high-conflict” and would not benefit from mediation, it is to get them into court as soon as possible, Jaffe said.

There should be a way to identify potential high-conflict cases at the start and getting them before a single judge who can follow the case to its conclusion — rather than having a number of judges hearing different motions and making conflicting rulings, Houston said, speaking in general.

The ongoing expansion of Unified Family Courts cannot happen fast enough, she said. They allow divorce, custody and child protection issues to be handled together by judges with expertise in family law, rather than in separate courts.

There also needs to be much better information-sharing between criminal, family and child-protection proceedings so that judges are making decisions with all the information available, Houston said.

A major issue is a lack of mental health supports available for the parents during the case, especially where those issues are contributing to the high-stress litigation, said Bala.

“Do we have appropriate counselling and supervision for these high-conflict families after the court proceedings?” he said. That support and monitoring can be crucial because cases are not static – the deterioration in mental health of one parent, or a change in circumstances can change the risk. That’s another reason why it can be important to get cases back to court quickly, he said.

Meanwhile, family court judges are faced with the difficult task of determining whether allegations of abuse can be proven. Bala says more resources for child protection services can help ensure thorough investigations and assessments are done faster so judges are able to have the information they need to make decisions. But it can be difficult for parents to provide evidence of physical or emotional abuse which often happens without witnesses. And if it is witnessed by family members, they may not be considered reliable in a hostile court case.

“If you go to criminal court, it’s very clear who has what role,” Jaffe said. There is the Crown, the police officer, there are victim services, there is access to counselling programs for perpetrators and victims. “In family court, it’s every man and woman for themselves,” he said. “A lot depends on the credibility of each parent.”

Then a final decision about custody has to be made that balances safety concerns with fair access – with the best interest of the child at the forefront.

“Judges are only as good as the level of education they have received on domestic violence,” he said. It means understanding that violence doesn’t mean just physical harm, it includes emotional and psychological abuse. He said there is still a need for judges and lawyers to be educated about domestic violence and child abuse because as things stand now, it’s a “crapshoot.”

“You aren’t guaranteed the same quality of judging if you live in one city compared to another,” Jaffe said.

“I think we can do a better job,” he said. “The answers are complex but one death is one too many and there have to be lessons learned.”