How
broken is our system?
This
is the question I will be asking you at the end of this post. To be able to contemplate this question,
please, read on.
I
am currently, and have been for the past almost year, engaged in a most
interesting legal process. As an
overview and brief summary of those points relevant to this posting… my son, Enrique,
who is on the Autistic Spectrum and who also has an as yet unlabelled sleeping
disorder which prevents him from being conscious more than 8 hours per day, a
situation which has been the case for almost three years now, turned 18 this
year. 18 is the age of majority where we
live. My son’s biological father, to
whom I was married when my son was born (a relevant fact within our laws),
removed himself completely from our son’s life when Enrique was about 8 years
old. Well, almost. The father did pay the court-mandated child
support, once we got the court order for such.
So what’s going on now? Well, the
father re-appeared on the scene at the beginning of this year to have child
support terminated on Enrique’s 18th birthday, because Enrique would
have reached the age of majority. As our
laws state that child support is to continue beyond 18 if the child is
incapable of maintaining him or herself, which is the case with Enrique since
he’s lucky if he’s conscious for 8 hours per day, not to mention the challenges
with employment and independence that are part of his ASD symptomologies, I
objected. We have been involved in
formal legal proceedings in relation to this issue since Enrique’s father
submitted a Notice of Motion back in January.
We are currently in the final stages of arbitration.
This
past year has been a very educational one for me. My experiences have prompted much
contemplation as well as discussion between myself and my colleagues on human
nature, the nature of our legal system, and the ability of our legal system to
accomplish that which it is my understanding she exists to do, which is to
provide a platform for realization of rule of law, which essentially is
equality under the law for all peoples, irregardless of social status, income,
gender, disability, ethnicity, etc etc.
I have found our system to have many flaws, and even in many ways to be
set up so as to actively disadvantage those who need its protection the
most. I will be making commentary and
posing “food for thought” questions on these topics on this blogsite as I move
forward, interspersed amongst my other postings on this blogsite. Here, today, I am posting a question that has
come up in relation to my experiences from the most recent past.
We
were supposed to go into oral arguments a couple of days ago. The morning before the day of the scheduled
arguments opposing counsel sent in that she was ill and wished an adjournment
until January, a month later. My ex-husband is an adversarial type of person,
and he found counsel to match his inclinations.
Throughout this process the two of them have engaged in an adversarial
strategy, which means that they don’t give space, or leeway, they jump all over
attempting to say information hasn’t been provided, even if it has and we have
courier chits to demonstrate such, if something looks as though it might be
late they start screaming that we aren’t co-operating, they won’t accept
supplemental information, they terminate discussions, even formally scheduled
ones such as mediation, in order to move forward to the more formal and
adversarial, and more costly (did I mention his income is about twenty times
mine?) processes, they lace all of their communications with personal
accusations, either towards myself or my counsel, that sort of thing.
It
is customary for counsels to grant adjournments on the basis of illness, or
actually, even on the basis of scheduling.
They like to treat each other as though they are “friends”. Fine.
Go ahead and do this. But. Not at the expense of my case. And not when
the other side has consistently treated us as sub-human for a lengthy period of
time.
Opposing
counsel in our situation has shown me no social graces throughout this
process. In fact, she has gone far the
other way. We, on the other hand, have
not gone the other way. My counsel has
thus far behaved as I hoped she would, which is with respect for the intent of
our legal system, to provide a platform for factual, non-emotional, voice of
the situation to be examined. This means
we haven’t been running around trying to duck under the rules or manipulate the
data, or what data is presented. So we
have a situation where the other side has basically been acting like a big
bully, while we have wandered along like civilised people, focused on the
“correct” process, taking the shots and refraining from shooting back.
So
now we have the other side saying, oh, be nice to us when we run into a bit of
trouble (unsubstantiated, by the way. No
doctor’s notes required here, even though there has been evidence throughout this
process of provision of falsehoods by the other side), and let’s push this
matter back. Well, you know, in life you
reap what you sow. If you want people to
be nice to you, then you need to have at the very least not been horribly mean
to them. So I said no. Yep, this was very much against my counsel’s
recommendations. She thinks I’m acting
emotionally, or that I’m trying to change the system. Sigh.
I tried to explain, in the brief period of time that one ever has to try
to explain anything to a lawyer, even one who is as open to learning and
interested as my current counsel is, my reasons, but I do not think I was
successful. And I won’t try to explain
here either why I would say no to an adjournment when it is most likely that
one will be forced anyways, because it really would take a while. So skipping over the “why’s”, we have the
situation where I have said no, I don’t agree to an adjournment. What then happens is that the matter of
whether there will be an adjournment goes before the arbitrator, who will make
a ruling.
Well,
the ruling unsurprisingly came back that there was to be an adjournment. And this is where the question I ask that you
readers take away from this comes in.
The reason for giving the adjournment, which was based upon the
assumption that opposing counsel really is ill and thus unable to represent her
client, was to protect my ex-husband’s right to effective counsel. How interesting. When this same opposing counsel first
presented these proceedings, back in January, there was no protection for any
right of mine for effective counsel. She
e-mailed me a Notice for a Court Appearance with a court appearance date of
just I think 5 days after the filing of that Notice, two of those days being
over a weekend, with the matter to be heard being an application to reduce my
income by 75% to well below the poverty line, while I was caring for a child
with special needs, and to have all support cut off upon that child’s 18th
birthday. I was lucky because I had had
a feeling, and had just, as in hours before, retained legal counsel, but we
didn’t get any allowances for extra time so I could have effective counsel, and
if I hadn’t had that “feeling” that had prompted me to go get legal counsel, I
wouldn’t have had any at all. I have
been in those court rooms before, from 10 years previous, and the judges don’t
stand up and say, oh, wait, you don’t have counsel and haven’t had time to get
one because the other side side-swiped you, we will stop these proceedings to
protect your right to effective counsel.
So, here we are now, and proceedings are delayed to the advantage of the
delaying party to protect their right to effective counsel. Where was my right to effective counsel back
in January? Why is the aggressor’s right
of so much more importance than mine?
And get this, I might even be assessed costs for this, for daring to
stand up for myself and equality in treatment.
My goodness, how broken is our system?
