One of the key characteristics setting family law apart from other civil matters is the extent to which outcomes are based on a fog of factors not necessarily obvious from the plain text of the legislation. The only result I would ever guarantee to a client involved in a family law dispute was the amount of child support that would payable, and I would only make this guarantee if: the child was under the age of majority; the payor was not self-employed; the payor earned less than $150,000 per year; the payor was not a stepparent; the child’s special expenses weren’t in dispute; the child’s parenting arrangements unquestionably did not amount to shared custody; neither parent was making an undue hardship claim; there was no reason to impute income to either parent; and, there was no need to average income or otherwise tweak a parent’s Line 150 income. Apart from that, the best I could usually offer was a description of the range of probably results, based on my knowledge of the legislation, the case law interpreting that legislation and my gut sense of the court’s likely approach to my client’s legal issues in the totality of the circumstances.
The extraordinary extent of this ambiguity has a number of consequences. First, it is a reminder of the substantial degree of expertise required to do family law well and the infelicity of delegating legal advice services to paralegals and junior lawyers. Second, it exacerbates conflict by denying separated spouses a single, certain answer and allowing them to cling to positions on the borders of likelihood. Third, it increases costs to litigants and to the system when disagreements must head to a hearing.
Although this sort of vagueness might militate against the automation of dispute resolution in family law matters, the success of the Child Support Guidelines and the Spousal Support Advisory Guidelines suggest that, with greater certainty, automation might just be possible. (When I went to law school at UBC, a faculty member had developed a program to assess the viability of a claim for the intentional infliction of nervous shock!) In this note I propose the creation of a software program to facilitate the settlement of legal disputes in the muddled bargaining context of family law. I am not a programmer, but I recognize the complexity inherent in what I propose. Nonetheless, it seems to me that a small group of expert family law lawyers working with a very patient software engineer might be able to come up with a prototype sufficient for evaluation in less than a year’s work; expanding the prototype to other provinces will require the adjustment of the program to account for local law and practice. There will of course be some cost involved, but I expect the cost would pale in comparison to the savings realized by even a marginal diversion of litigants from the court system.
Negotiating Settlements in Family Law Disputes
In many respects, my job as a family law lawyer was to foster the objectivity of my clients and encourage them, as much as I could, to adopt a rational approach to their legal issues. I could not and would not advocate irrational positions, and, quite apart from concerns about my reputation, the more I could assist my clients toward an understanding the law and achieving emotional disengagement, the happier they generally were. Of course one must not confuse “rational” with “fair.” By “rational position,” I mean a coherent legal position that lies somewhere within the range of probable outcomes, even though the range of likely outcomes may itself be unfair to the individual, as I’ve discussed elsewhere.
At the commencement of a dispute, the parties’ positions will bear a greater or lesser relationship with rationality depending on the extent to which each position is within the range of likely outcomes. One party’s position may be mostly rational (“I will pay child support as the Guidelines requires.”) and another’s may be irrational (“She had an affair, I will quit my job to make sure she gets no support.”), with no points in common:
Each party’s position may be fairly reasonable (“The children will live mostly with me.” “No, the children will live with me.”) yet still share no points in common from which to begin negotiations:
The job of the lawyer for each side is to push the client’s position as much toward the range of likely outcomes as possible, after giving proper legal advice and making a good effort to reframe the client’s perceptions of the situation, particularly where the client’s position is irrational and lies well outside the range. Providing that the parties’ counsel have a relatively common understanding of the facts and the applicable law, the result of the lawyers’ efforts also should be to push the parties’ positions together, within the range of likely outcomes, thereby maximizing the likelihood of settlement.
Ideally, there should be only fractional portions of each party’s position that are not shared with both the range of likely outcomes and the position of the other side. In such a case, each party’s position would be mostly rational and agreement would be easily within reach:
However a more realistic best-case early outcome would consist of somewhat rational parties sharing some degree if concordance between their positions:
Getting from positions that are disconnected from each other, and from the range of likely outcomes, to the ideal overlap of positions and probability seems to me to involve four stages, perhaps five. As a party moves from one stage to the next, the rationality of his or her position increases while the propinquity of that position relative to his or her ideal result decreases, thus moving both parties closer to potential settlement:
The fifth stage, which will be familiar to most commercial mediators, is a stage I’m not terribly fond of. Although it is perhaps the most rational from a cost-benefit approach, it has a back-up-against-the-wall flavour to it that may yield significant resentment down the road. Family law, furthermore, is not concerned with only financial costs; there are substantial and important non-pecuniary values and interests at play as well.
Nevertheless, by stage three, the parties’ positions, wherever they might have been at stage one, are now moored within the range of likely outcomes, legal advice having been given and the parties having become resigned to the constraints the law imposes on their bargaining positions. By stage four, there should be enough commonalities between the parties’ positions that sensible negotiations can take place. Barring any problems lacking meaningful compromise, such as disputes about mobility, settlement should be within reach, particularly if counsel begin to discuss with their clients the sort of bottom line analysis required by stage five.
This sketch of negotiation in the context of family law disputes makes certain assumptions, which will not have passed unnoticed by anyone who has practiced in the area. Firstly, it assumes that the parties are lucid and capable of acting in their rational self-interest, which secondly implies that they are only marginally motivated by principle, revenge, malice or spite. It assumes that the parties are able to rationally assess the best interests of their children and put those interests ahead of their own. It fourthly assumes that the parties are capable of bargaining in circumstances of incomplete information, as disclosure in family law matters is rarely perfect and the future is always unknown. Fifthly, it assumes that counsel have an approximately shared understanding of the critical facts, the applicable law and are able to assess their clients’ legal situations independent of their clients’ emotional states.
This is a tall order, I know, and it may the case that not all parties are suited for an automated dispute resolution process; in such circumstances the courts will of course remain available. However, even if an automated process resolves just 25% of family law cases at minimal cost to the parties and the system, such a process would result in significant savings even after the cost of software development is taken into account.
Addressing Ambiguity in Family Law
I have elsewhere suggested that cryptic, involuted legislation requiring reference to case law to comprehend is itself a barrier to justice. This is especially so where legislation is intentionally drafted to be ambiguous by providing open-ended definitions and tests with non-exhaustive lists of factors to be considered, and is overly generous with the discretion afforded to the court. Certainly, this approach allows judges to provide bespoke justice but it’s singularly unhelpful when a spouse must decide which expenses are “special or extraordinary,” whether to seek spousal support or the sort of parenting plan that best suits the children.
The Guidelines and Advisory Guidelines are excellent examples of how the imposition of consistent but arbitrary rules can reduce ambiguity and increase certainty, resulting in: legislation that is easier to understand; a narrowed range of potential outcomes; a decreased likelihood that parties will adopt and maintain extreme positions; improvements in the capacity of parties to resolve the issues arising from their separation on their own, out of court and without counsel; and, better access to family justice. That said, I’ve earlier pointed out some of the difficulties in determining even the table amount of child support payable. The degree of certainty provided by the Guidelines could be improved, I suggest, by:
- making the formula used to calculate child support for payors with incomes in excess of $150,000 mandatory;
- eliminating the discretion afforded when child support is paid in respect of adult children, by either requiring payment of the table amount or a fixed percentage of the table amount;
- eliminating the discretion afforded if the payor is a stepparent, by either requiring payment of the table amount or a fixed percentage of the table amount; and,
- clearly stating how the payor’s time with the child is to be calculated for the purposes of the shared custody exception to the table amounts, and then providing a specific formula for the calculation of quantum when the 40% threshold is reached.
A similar strategy could be applied to the Advisory Guidelines, which is especially rife with fuzzy definitions and discretionary considerations.
Speaking of spousal support, it should also be possible to develop a concrete methodology to determine entitlement, an issue conspicuously and purposefully avoided by the Advisory Guidelines. The factors a formulaic approach to entitlement might involve include: length of cohabiting relationship; age of proposed payor and proposed recipient; ratio of parties’ present incomes; ratio of parties’ anticipated future incomes; permanence or security of parties’ employment; and, presence or absence of disabilities affecting the employability of each party, calculated somewhat in the manner used by workers’ compensation assessors.
Clarity could be given to the division of property firstly, and most importantly, by extending to long-term cohabiting couples the property division regimes enjoyed by married spouses. At present, unmarried couples in those provinces where they are excluded from matrimonial property legislation must wade through the muck and mire of unjust enrichment claims to pursue an interest in property, the outcome of which can be almost impossible to predict. Where settlement cannot be reached, the time required to resolve unjust enrichment claims in court is usually far longer than what is generally required for married spouses who have the luxury of a determinate statutory regime.
Mind you, these statutory regimes could be substantially more intelligible than they are at present. British Columbia has taken steps toward clarity with legislation that presumes that family property will be divided equally, and will not be divided unequally unless an equal division would be “significantly unfair.” Although BC’s Family Law Act could be much more particular than it is, it’s still significantly better than Alberta’s Matrimonial Property Act. The Alberta legislation merely requires the court to divide property “in a manner it considers just and equitable,” taking into account a non-exhaustive list of factors that includes the “contributions made by each spouse to the marriage” and the “contribution, whether financial or in some other form, made directly and indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the property.” Good grief.
Given the complexity and ambiguity permeating every area of family law, it’s hardly surprising that spouses would find themselves at odds over the legal issues arising from their separation. In my respectful view, the legislative regimes presently governing family law matters are badly in need of a thorough defogging. Constraining the range of potential outcomes, more firmly fixing presumptions and limiting the factors applicable to legal tests will assist parties in settling their disputes by promoting rational positions, and will ultimately reduce the costs incurred by both the justice system and the parties in resolving family law disputes.
An Outline of a Family Law Dispute Resolution Software Program
I imagine that a program intended to assist parties resolve the issues arising from their separation would be visibly branded by the provincial and federal ministries of justice, and would be available online and at kiosks in the courthouse. The parties would start the program at roughly the same time, but in different locations to ensure that neither could observe program outputs to the other and to minimize their ability to communicate with one another. All text displayed by the program would be carefully drafted in plain language, be comprehensible by someone who has finished primary school and feature pop-up plain language legal definitions whenever technical language absolutely must be used. The program would also be available in at least the three most common non-English languages spoken in the province.
The parties would firstly obtain legal advice and exchange copies of the relevant documents and information, and agree when they will start the program. The program would begin, as all do, with inputs. These inputs seem to me to consist of both factual and legal data. The factual information would include, at a minimum, the following:
- each party’s age;
- each party’s present employment circumstances and gross incomes from all sources for the previous three years;
- the present and future employability of each party, including anticipated retirement;
- the parties’ marital status, when relevant;
- the length of the parties’ cohabiting relationship, and the date of their separation;
- the ages of the children, and in the case of adult children the status of their schooling or likely self-sufficiency;
- the pattern of care of the children prevailing during the relationship and the pattern of care after separation;
- any limitations on each party’s capacity to care for the children, including because of the party’s place of residence, employment, manifest parenting deficiencies and illness;
- the nature and cost of each child’s special expenses;
- the type and value of property brought into the relationship and any associated debt;
- the type and value of property existing at the date of separation and any associated debt; and,
- the value of property acquired by inheritance or court award, and the date of acquisition.
The precise data required in respect of the division of property would depend on the applicable law, and further data relating to the care of the children, child support and spousal support would certainly be required.
The legal inputs would consist of:
- each party’s preferred outcome on each legal issue, with each party entering their positions blind to the position of the other;
- any applicable legal presumptions;
- the range of likely legal outcomes; and,
- the terms of any existing orders and agreements relevant to the legal issues.
With sufficient clarity in the applicable legislation, the software could likely be programmed with the range of likely outcomes based on case law. With appropriate heuristics and a continuing input of case law, the software could even monitor and adjust the range of likely outcomes on an ongoing basis as the law evolves.
The program would firstly flag any irrational positions taken by a party – defined as positions lying outside the range of likely outcomes – and adjust the party’s position to the rational position closest to their preferred outcome. The program would report to the party what has been adjusted and why.
The program would then determine entitlement to child support and spousal support, calculate the amounts payable and the likely duration for which it would be paid, and determine the income ratio applicable to the sharing of the children’s special expenses. The program would report the results of these calculations to both parties.
Next, the program would identify, and report to both parties, any areas of agreement. The program would display a graphic to both parties indicating how close they are to a global settlement, a graphic that will be updated as the program runs its course.
The program would then compare any remaining areas of disagreement between the parties’ positions – which should now be limited to the children’s special expenses, arrangements the care of the children and the allotment of property and debt – and evaluate the extent of the parties’ disagreement on each legal issue. The program would then determine a midpoint compromise for each disagreement and verify that the midpoint lies within the range of likely outcomes.
The program would state the midpoint result on each issue to each party, without describing the result as a midpoint, and ask whether the result is acceptable to each party.
The program would then identify, and report to both parties, any areas of agreement and adjust the global settlement graphic accordingly.
The program would then calculate the division of property and apportionment of debt, applying the presumptive scheme required by provincial law, assuming property and debt remain in contention. The program would then provide both parties with the results of its property and debt calculations, and, for each issue remaining in dispute, identify to each party any aspects of their positions that are close to or at the limits of the range of likely outcomes and offer each party the opportunity to amend his or her position in light of the new information.
If a party modifies his or her position, the program would check for any areas of agreement, report the new agreement to both parties and adjust the global settlement graphic. If agreement is not reached on one or more issues, the program would recalculate the midpoint compromise on those issues and ask whether the result is acceptable to each party. If agreement is reached, the program would report the agreement to both parties and adjust the global settlement graphic accordingly.
If issues remain unresolved at this point, the program would then assess the settled and outstanding issues for trade offs that might balance the parties’ positions, trading spousal support for property or periodic support for a lump sum, for example. The program would then summarize the potential trade offs to each party, without describing the result as a trade off, and ask whether the result is acceptable. If agreement is reached, the program would report the agreement to both parties and adjust the global settlement graphic.
If outstanding issues remain at this point, the program would display the areas of agreement to both parties and the legal issues remaining in dispute, but not the parties’ last positions on each issue. (The purpose of not revealing these positions is to ensure that the assisted negotiations may be treated as occurring on a without prejudice basis, freeing the parties to propose compromises for the sake of settlement that they will not be held to in the event the matter must proceed to trial.) The program would then provide both parties with an estimate of the likely legal fees required to take all issues to trial, the likely length of trial and, tapping into the court registry database, the probable length of time until a trial of that duration can be heard.
The program would then ask each party if they wish to consider any alternatives to their last positions on the outstanding matters. If agreement is reached, the program reports the agreement to both parties and adjusts the global settlement graphic. Otherwise, the program restates the matters in dispute.
In the event of a global settlement, the program provides, in PDF format, a summary of the facts inputted and the terms of the settlement reached in order that the parties may attend counsel for independent legal advice and the drafting of a separation agreement or consent order. In the event global settlement is not reached, the program would provide the parties with a summary of the facts inputted, the terms of any agreements reached that could potentially be incorporated into a separation agreement or consent order, and the legal issues remaining in dispute, again without revealing the parties’ positions on those issues.
I realize that much of this proposal for an automated settlement tool is fantasy and that much of what I have written is likely misinformed and incomplete. Nevertheless, it might be a valuable exercise for governments and court services agencies to consider what if any aspects of the family law disputes that clog our court systems are amenable to automation or, at the very least, the imposition of greater certainty. Acknowledging the existence of invidious and persistently irresolvable problems such as mobility and the imputation of income, wouldn’t it be nice if we could get at least some disputes about child support, spousal support and the division of property out of the courtroom? What would the savings be to the system of even – forget 25% – just a 10% drop in caseload? What would the savings be to individual litigants?