Why Canada needs a split from
its messy divorce laws
Globe and Mail
Love is grand, the saying goes, divorce is 100 grand.
True words for 49-year-old Lucas Kott, a self-employed construction worker
who estimates that after all the lawyer's fees, affidavits and court
appearances, he and his soon-to-be ex-wife will have spent nearly $125,000
arguing over custody of their two young children. His half has already put him
$20,000 in debt, even before a five-day trialscheduled for the fall – money he
knows would have been better spent on his kids. Now, he can't afford to move out
of his two-bedroom Vancouver apartment.
“There is a lot of emotion. You are at the mercy of the lawyers,” he says.
And, unlike with many breakups, there was no haggling over property. “This is
not a decision about what kind of parent I am, or what kind of parent my wife
is. It's the process that is very complicated.”
The family-law system in this country is a wreck. A study by the Law Society
of Upper Canada found that, on average, it takes three years for a litigated
Ontario divorce involving children to stumble through family court, and by then,
in addition to the heartache and turmoil, a good chunk of retirement savings and
college funds has disappeared.
Toronto family lawyer Michael Cochrane once did his own rough math: To cover
the public costs (courts, police services, children's aid, mental-health
resources) and the private bills (for lawyers, forensic accountants and
child-custody consultants), a marriage that ends would have to cost $50,000.
Instead, municipalities charge about $150 for the right to get hitched. For
the 38 per cent of Canadian marriages that are doomed, a nice dinner would have
been a better investment.
There are about 70,000 divorces a year in Canada. Many couples manage to hash
it out on their own, and walk away with bank accounts largely intact – though
just a couple of case conferences with lawyers can quickly surpass $10,000. The
very rich can buy private justice behind closed doors with pricey mediators.
But the less well-off, who can't agree or don't know better, wind up in
court, weighed down by motions and affidavits before well-meaning judges who may
or may not have expertise in family law.
This adversarial system makes combatants of parents, and a growing number of
spouses show up without lawyers at all because they can't afford fees, which
only drags their cases out longer. The more money wasted, the more time spent
squabbling over who takes the kids at Christmas or the value of that second-hand
Toyota, the angrier everyone gets.
If the state has no business in the bedrooms of the nation, courts certainly
have their hands full managing the rest of the house. “Why would we allow
families to be put through this wringer? The answer is that this is the way we
have always done it,” says Mr. Cochrane, who has been practising family law for
31 years and has become increasingly vocal about the need for reform. “If there
was ever a new country invented, and the government asked us what kind of family
law they should have, no one would ever recommend what we've got.”
Canada is not alone – many other jurisdictions are struggling to find a
cheaper and gentler way to break up a family without shattering it. Starting in
April, nearly all divorcing couples in Britain will be required to participate
in mandatory mediation before a judge hears their case. In Australia, the
government has funded a $200-million (Australian) nationwide network of family
relationship centres that counsel to and mediate for separating couples –
especially parents – free of charge.
Some experts continue to make the case for treating divorce like a labour-relations
matter, to be heard before a similarly styled tribunal. One of the more
vocal proponents for overhauling the family-law system is the Chief Justice
of Ontario, Warren Winkler (see facing page), who would
like to see mediation as the presumptive first step for almost all couples –
a condition already in place in Quebec – and a “triage” judge who could
screen cases and divert them away from the court, as several jurisdictions
in the United States now have in place.
“We have to go back to the basics
here, and simplify the process,” he says. “Three years for little kids is
like forever. It can be catastrophic and ruin their lives.”
The worse old days
Unhappy Canadian couples simply stuck it out before the 1960s, when
divorce, in most provinces, required the messy business of proving one's
spouses had cheated. (In Newfoundland and Quebec, it also required a Senate
investigation and an act of Parliament.) The law was more onerous for wives,
who also had to prove “incestuous adultery, rape, sodomy, bestiality,
bigamy, or adultery coupled with cruelty or desertion.” Despite a steady
uptick after the Second World War, divorce was rare – in 1961, there were
about 6,500. Seven years later, Ottawa created the country's first federal
divorce law, both expanding the grounds for divorce and making them
gender-neutral – in one year, divorce rates more than doubled, and kept
In 1985, when the government brought in the current no-fault divorce,
rates jumped again, peaking at 96,000 in 1987, but they levelled out this
decade to about 70,000 a year. (Compared with other countries, Canada's
divorce rate falls in the middle of the pack, lower than that in the United
The law does a fair job of ripping up a marriage contract, but it has
always had a harder time handling the money and kids stuck in the middle. Or
even keeping pace with the modern family. (British Columbia, for instance,
is currently overhauling its Family Relations Act for the first time since
it was introduced in the late 1970s.)
No one is saying the courts don't have an important role: In the very
worst cases, involving domestic violence or child abuse, the law must step
in. Some couples need a judge to lay down the law, literally. But family
breakups are not fender-benders to be assessed for costs and damages. The
adversarial legal system was not designed to deal with bitter spouses,
desperate parents or emotion-fraught circumstances that might be complicated
by addiction, debt problems or mental-health issues.
The result: cases that drag on, files that get longer, an atmosphere that
gets ever more nasty.
How did we get to a place where court time, with all its public expense,
goes to deciding who opens presents with Suzie on Christmas morning? Stephen
Grant, a veteran family lawyer in Toronto, has seen this kind of bickering
so often, he no longer takes child-custody cases. “Divorce is hard enough on
families,” he says. “And then parents put on their suit and armour and go to
court. There must be a better way.”
The shape of things to come?
The problem is how to steer couples effectively away from the courts. In
some countries, such as Britain, that has meant forcing families into
mandatory mediation, although critics have rightly pointed out that in cases
of domestic violence or power differences between spouses, this might not
always be the right approach.
For many places, reform has gone further, focusing on the health of the
family, and providing more than legal assistance or conflict resolution. In
Connecticut, for instance, a triage system doesn't simply hive off cases
that don't need a court hearing – couples are directed to financial
counselling or parenting courses.
Australia has transplanted troubled families away from courts and into 65
Family Responsibility Centres in cities across the country. Parents or
spouses who visit the centre sit first with an adviser, who hears their
story, and then directs them to the services needed – mediation, addiction
treatment, financial advice or parenting support. Some services are provided
on site; in other cases, appointments are made elsewhere. Mediation at the
centre costs only a nominal fee.
It's not a perfect system:
Critics point out that couples must still see a lawyer to make an agreement
official. But Patrick Parkinson, a family-law specialist at Sydney Law
School who advised the government on the new program cites a 2009 survey
that reported a 22-per-cent drop in the child-custody filings among families
using the services.
Another study found that 40 per cent of cases handled at the
family centres settled all conflicts; among the remaining 60 per cent with
outstanding issues, half of them skipped court and eventually worked it out
on their own. But court filings tell only part of the story, Dr. Parkinson
says. The centres also assist spouses who might have otherwise given up
because the cost of private mediation or legal remedies was too expensive.
Based on the idea that a divorce is a “reorganization” of the family, and
not an end to it, parents may also return for free sessions up to two years
later to resolve new issues.
Lawyers such as Michael Cochrane would go one step further, creating a
labour-relations-style tribunal, completely separate from the courts, that
would provide a range of counselling services and where specialized
arbitrators would make binding decisions. “As long as lawyers and judges run
the show, it will stay the same as it is now.”
And perhaps, Toronto lawyer Judith Huddart says, people might come to
their senses sooner if they were better educated about the costs and risks
of divorce – long before their first court appearance. A comprehensive and
mandatory education program would expose them to other options, such as
collaborative law, in which lawyers work together on a settlement. And it
would spell out what a hostile divorce does to their kids, as well as their
That cautionary lesson might have spared Tania Thompson long days in
court and the $50,000 she paid in legal fees, most of it borrowed from her
father. Now a single mom with two young children in Mississauga, she wishes
that she and her ex-husband had been ordered into mediation before a judge
was even an option. “The lawyers all of a sudden make it more of a tense
situation.” And a courtroom, she says, is a cold place to reorganize your
family for the future.
Erin Anderssen is a Globe and Mail feature writer.
Canada, needs to address the "root causes" rather than the following domino
First Canada needs a Legal Presumption of Equal Parenting and NOT a single
political party has made it part of their platform to make this a reality. The
Private members Bill C-422 – is now DEAD. It's null and void, an event that
every MP knew would happen.
Every Father and true feminist who believes in equal parenting, should nail
their candidate to the wall and not let them move until they provide their
Don't even bother talking to the NDP, aka "the no dads party".
Second, Canada has Feminist written, "Male Sharia Law" that has child support
guidelines that have no resemblance to the reality of the cost of parenting by
two parents. The Male Apartheid approach of man hating feminist lawyers, gives
women almost every crazy order they ask for including no access, "visitation"
and issue "restraining orders" like confetti that last a life time.
Third, Canada needs to get rid of its "Debtor Prisons", Its Gestapo
organizations like the Family Responsibility Office who put men in jail in
droves for no other purpose than being a father and asking a Dead Beat Man
Hating Judge for access.
Forth, Canada needs Police for the Judiciary. We have the most vile corrupt
examples of humanity like Justice Allan Sheffield and Denis Power who issue
"orders striking pleadings" "Summary Judgment" Orders for "security for costs",
Orders for "vexatious litigant Orders" and orders for support based on an income
figure that never existed or does not exist.
These professional child abusers habitually flagrantly abuse their judicial
powers often for the corrupt purpose of giving orders for "costs" to their Legal
Cartel friends" and what's worse, to EXACT REVENGE to any father who dares to
make their dirty criminal deeds public.
The worst child abusers and criminals are not in jail, You will find them at 161
Elgin Street Ottawa, home of the worst most vile examples of the judiciary in
Court Staff routinely allow women to "JUDGE SHOP" take Ottawa's Superior Court
of Justice Trial Co-ordinator, who regularly conveniently puts the worst man
hating judges on cases where the lawyer just happens to be a feminist lawyer on
a case that would be hopeless in front of any other sane reasonable judge.
Other judges like Allan Sheffield take orders over the phone to hold motions for
While we have such a stinking festering examples of judiciary, our society will
continue to be burdened with a 100 billion dollar waste of money called Family