The Flaw in Family Law

When divorce shakes a family, the children suffer most. Canada's deeply flawed family court system is partly to blame.

You would be hard-pressed to find a knowledgeable Canadian who could defend our current family law system against reasonable standards. Is it efficient? Cost-effective? Good for families? Good for men? Women? Children? The answer is no on every score. Day in and day out, our justice system drains the spirit, energy, and life savings out of tens of thousands of Canadians who are going through separation and divorce. Factor in the millions of dollars transferred from Canadians’ savings to lawyers’ accounts and the cost to taxpayers of the entire industry surrounding divorce in Canada – Legal Aid, police, judges, court staff, disrupted schools, doctors, and social workers – and we have nothing short of a billion-dollar drag on the Canadian economy. If the system is indefensible, which it is, can we just start over again? Or should we let millions of Canadians continue to suffer through the nation’s divorce grinder?

We need a wholesale reform of family dispute resolution, and we can start by taking it out of the courts altogether. No one can recall or really cares how we began to think that family relationships could be untangled in the same way as car accidents, commercial disputes, and negligence claims. Some families need financial planning advice at the time of separation more than they need an opinion from the Supreme Court of Canada. Some need direct and immediate access to police because there are safety concerns, others advice on getting one of the spouses retrained and back into the workforce as quickly as possible. And almost all families need some form of counseling to help them transition from one dysfunctional household to two healthy, functioning homes. Our current court system handles these sensitive needs with the blunt instrument of adversarial court orders. We need, instead, the equivalent of a labour relations tribunal – a Family Relations Tribunal, if you will, where resources are devoted to the multi-disciplinary needs of families.

I would rather see separating couples approach a tribunal asking for help in exiting their relationship peacefully, in a way that ensures the family’s resources are shared fairly. That same tribunal should help the family divide responsibility for the children, financially and otherwise, in a way that reflects part of the reality of that family’s pre-separation existence. It is a painful mystery to think how some mothers and fathers are forced to transition from seeing their children every single day to seeing them every second weekend for a few hours. How can we expect families and children to thrive after separation if they move into an artificial parenting universe totally unlike that to which they were accustomed?

It is difficult to keep the focus on the children involved in these kinds of disputes. We have a justice system (and, dare I say, a political system) that is focused very much on the rights of mothers, the rights of fathers, the rights of men, the rights of women, and the rights of grandparents. There has been very, very little emphasis on the rights and needs of children. Mothers and fathers exhaust their emotions and resources paying lawyers (if they can afford one) to fight over custody and access, but the children emerging from these high-conflict divorces will exhaust taxpayers’ resources when they end up with eating and mood disorders, depressed, drugged, smoking, drinking, taking up time in our classrooms, sitting in doctors’ and social workers’ offices and Children’s Aid Societies, and – as is the case for many children of divorce – moving into our young offenders’ justice system. Parents fight over their children because our family law system facilitates that fight. We need to stop letting that happen.

Let’s tear down Canada’s family law system and start over. Disagree? Debate me – anywhere, anytime. The current system must go.