A Few Thoughts for Family Law Litigants: Why It Pays to Let Bygones Be Bygones

Difference is a necessary part of the human condition, without which we’d be an awfully dull lot. Although difference is what gives us creativity and invention, it’s also the cause of intolerance and war, and it’s what keeps family law lawyers in business. As Martin Gore famously put it,

People are people so why should it be
You and I should get along so awfully?

There are an infinite number of reasons why committed, long-term relationships break down. Some people get bored. Some grow apart as they get older. Others just turn into assholes.

Once upon a time, thanks largely to Catholic dogma that mysteriously survived the Henrician Reformation, marriage was presumed to be a permanent enterprise that would end only upon the death of one or both spouses. That was probably a reasonable arrangement when life expectancy topped out at 30 or 35, but people nowadays generally live into their 80s, and a life-long commitment to one person is an awfully, awfully long commitment.

However, when we of the commonwealth let our hair down in the mid-nineteeth century and agreed that people could get divorced without having to engineer the passage of a private member’s bill through Parliament, we weren’t prepared to simply walk away from a centuries-old dedication to permanent misery. As a result, you couldn’t just say talaqtalaqtalaq and be done with it, you had to get a judge to make a divorce order and that meant proving the facts justifying a “sentence” of divorce.

If you had the good fortune to be male, you could ask for a divorce under s. 27 of the 1857 Divorce and Matrimonial Causes Act on the basis that your wife had committed adultery at some point during your marriage. If you happened to be female, simple adultery was a no-go. Instead, you could ask for a for a divorce on the basis that your husband had committed:

  • incestuous adultery;
  • bigamy with adultery;
  • rape, sodomy or bestiality;
  • adultery coupled with cruelty; or,
  • adultery coupled with “desertion without reasonable excuse” for at least two years.

We in Canada, however, are so awesomely progressive that our first legislation on divorce, the 1968 Divorce Act, abolished the distinction between sexes. Regardless of gender, you could ask for a divorce on the basis that you had been separated for at least three years, or, under ss. 4 and 5, that your spouse had:

  • committed adultery;
  • been guilty of sodomy, bestiality, rape or a “homosexual act” (exquisite interior design, perhaps? scrupulous attention to personal grooming?);
  • gone through a form of marriage to someone other than yourself;
  • treated you with such cruelty that you could no longer live together;
  • been imprisoned for at least three of the last five years;
  • been recently sentenced to death or imprisonment for at least ten years;
  • been “grossly addicted” to alcohol or drugs for the last three years; or,
  • disappeared for the last three years or deserted you for the last five years.

Ahead of our time we truly were.

The Divorce Act didn’t stop there. You could also ask the court to make orders for spousal support and child support, and for the custody of your children. However, the court, in addition to considering your “condition, means and other circumstances,” also had to think about “the conduct of the parties.” Ouch. I can imagine the havoc wrought when success or failure hung on proof of a party’s misconduct during the marriage.

Things got much better with the 1985 Divorce Act, which introduced a “no-fault” version of divorce. Although you could still get divorced because of your spouse’s adultery or cruelty, misconduct was removed as a consideration in making orders for child support, and the court was expressly forbidden from considering the conduct of a spouse during the marriage when making orders for spousal support and the custody of children.

Now the thing about our clients is that you can say that misconduct isn’t a factor, but it doesn’t stop them from thinking that it should be a factor, especially when they’re still full of the fraught and inflated emotions that accompany the breakdown of a long relationship. (Irresponsible lawyers who fail to steer their clients away from this line of thinking certainly don’t help.) This brings me to the point of the post at hand: it is both idiotic and expensive for litigants to take positions in family law disputes because of their hurt feelings or desire for revenge. Let me provide a couple of examples and explain.

“He knew that full well that doing drugs was a deal-breaker – that was why my first marriage broke up! – and he did cocaine anyway. Is this grounds for me getting more than half the family property?”

“She’s the one who had the affair. I’m not going to pay her a penny of support, even if I have to quit my job.”

“I told him when we got married that pornography was an issue for me. He promised me that he would never use it. When we got an internet connection, I asked him again if he would be able to avoid looking at pornography, and he promised he could. I just saw his web browser history and I am completely disgusted. I feel that he’s broken a fundamental trust. I want sole custody!”

All of these statements come from people I’ve spoken with in the last few months, and, regardless of my personal views on the probity of such behaviour, they were all pretty wound up about the situations they found themselves in and were genuinely upset about their spouse’s behaviour.

I get that. I understand. I’ve had thousands of clients in the years I practiced family law, and I totally appreciate how hot emotions run when a long-term relationship comes crashing to the ground. No worries. A problem, however, arises when these emotions are allowed to drive the train rather than the rational side of the litigant’s brain. The simple truth is that if someone walks into court with positions like these, that person will lose. None of these positions are supported by the law or the legislation. Not only will the litigant most certainly lose the application or trial, but:

  • the litigant’s legal fees will be much higher than they would otherwise have been;
  • the litigant may be ordered to pay the opposing party’s costs of the application, the trial or the whole of the proceeding;
  • the enmity between the parties will last far longer than it normally would, and possibly assume a permanent residence in the litigant’s psyche; and,
  • the litigant will likely lose the respect of his or her children and, I hope, of his or her friends and family as well.

The thing is, we no longer think about fault, misconduct, narcissistic injury and the priggish sensibilities of a spouse when we deal with family law problems. Yes, doing illegal drugs is a problem, but it’s got nothing to do with how property is divided. Nothing. If you have kids, and he’s high when he looks after them, then I have a problem, not because I have a moral issue with his choices but because it reflects poorly on his priorities and parenting capacity. Yes, having an affair is bad, but it’s got nothing to do with whether your spouse is entitled to spousal support. Nothing at all. And if you quit your job, I’m going to ask the court to impute income to you and ask for your spouse’s costs of the application because of your petty, juvenile behaviour. Likewise I have no issue with someone’s use of pornography, unless the pornography involves children or nonconsensual behaviour, or he watches porn in front of the kids. You might object to behaviour you consider sinful, but your views of his corruption and general naughtiness have nothing to do with his relationship with the children and capacity to care for them.

Litigants must also consider how their spouse is likely to respond to claims involving his or her weak morals, drug and alcohol use, abusiveness, quick temper, masturbatory habits and so forth. People don’t generally take kindly to seeing claims like that reduced to writing in public court documents, whether they’re true or not, and tend to fight fire with fire. I guarantee that the opposing party is not going to write an affidavit admitting to everything. Instead, the other spouse will file a stern response that not only denies the truth or extent of the claims that have been made but asks for equally inflammatory and improbable orders, and will then write an affidavit talking about all of the litigant’s peccadilloes and indiscretions! I once had a case, very early on in my career, which went something like this:

Her: “You drink all the time. You’re always drunk and there are empties all over the house. You even drive when you’ve been drinking.”

Him: “I only drink socially, one or two beers at most, and I never ever drive when I’ve been drinking. You smoke pot. You even smoked pot while you were breastfeeding our daughter.”

She thought she was seizing the moral high ground by pointing out his weaknesses. He replied by trivializing the severity of his drinking, as I would have expected, and came back with a spicy counterargument about her drug use. I still very much regret this case.

This approach of course significantly reduces the quality of the data available for judicial consideration. Each of the litigants is behaving like a child as they busily throw shit at each other, and the job of the judge is reduced to deciding which parent is the least shitty. Is this how decisions about the care of children should be made? With the greatest of respect, I think not.

The court, in my view, does not want to deal with people who come before it with problems, complaints and grievances, much less bizarre claims that have no reasonable prospect of success. The court does want to deal with calm, rational people who come to court with solutions, and whose preferred results are well within both the law and the range of likely outcomes. Among other things, this means that litigants must:

  • drop arguments and claims that are based on their own feelings of woundedness or their spouse’s purportedly immoral behaviour;
  • avoid mentioning historical events that are not genuinely relevant to the matters before the court, no matter how much those events upset and continue to upset the litigant;
  • keep their complaints about minutiae and the mundane to themselves;
  • write affidavits that are maximally factual, avoid invective and use an absolute minimum number of adjectives and adverbs;
  • consent to obligations that the litigant cannot avoid;
  • advance claims that are minimally controversial, like asking for a divorce based on separation even though they could also ask for a divorce because of their spouse’s infidelity; and,
  • propose rational solutions that look to the future, work for everyone and are likely to promote the best interests of the children.

Put more simply, litigants involved in family law disputes must grow up and let bygones be bygones. I’m not suggesting that our clients must cling to an impossibly ascetic high road; all I’m suggesting is that they avoid the muck of the lowest road.

A version of this post originally appeared in JP Boyd on Family Law: the Blog on 3 June 2015.

John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary


  1. Jacqueline Boucher

    Great comments. Any family law practitioner would be well advised to read this to their client’s during a first interview.

  2. It’s my understanding that “life expectancy topped out at 30 or 35” statements about Europe of centuries ago include infant mortality, so it is not correct to assume that most people married at 20 or so and died a mere decade or so later. People who survived infancy could, on average, expect to have reasonably long lives and reasonably long marriages. Infant mortality was tragically high, so the average lifespan can appear misleadingly short.

  3. Good point Luke. You’re entirely right about the extraordinarily high rate of infant mortality. However, I’ve found a source who calculated life expectancy rates by looking at the birth and death records of English nobles in the twelfth and thirteenth centuries. Excluding infants, “the mean life expectancy for women was 43.6 years, with a median of 42/43; for men, it was a mean of 48.7 and a median of 48/49”.

    Of course, these people would also have eaten far better than the average person, been preserved from the fatal forms of manual labour and have had better “medical” care than the average person, so I assume that a life expectancy of 44 for women and 49 for men is a titch on the high side. You’re right, though, that my somewhat flippant comment about life expectancy topping out about about 30 or 35 is on the low side.

  4. Thank you for your kind comment, Jacqueline.

    I assert no copyright over this post, and no moral rights other than the right to be associated with the post as author, and it may be reproduced, reused and repurposed as you and others see fit.

  5. This is the frank, no BS spirit that we all appreciate in JP’s work… and it is the tone that still pervades JP Boyd on Family Law.
    Oh, and as a recovered family lawyer, I feel Jacqueline got the nail right on the head with her observation. Coaching one’s own client to take off their suicide vest and step back from the conflict is one of the most important parts of a family lawyer’s job!

  6. Since I published this post, a number of colleagues have brought my attention to two recent judgments by Madam Justice Sharma of the BC Supreme Court. Looking at the dates of hearing in the decisions, it appears that Her Ladyship had the grave misfortune of being subjected to two two-day hearings back to back at the end of January. The first was a summary trial and the second was an application for an interim order, meaning that the evidence in both was presented exclusively by affidavit. Her Ladyship was not amused:

    Case #1: “The affidavit material filed in support of and opposition to the application contained hearsay, double-hearsay, statements without attribution or that could not be in the affiant’s personal knowledge, argument, speculation and other statements of dubious admissibility. Allegations are flung from both sides.”

    Case #2: “The parties brought to my attention over 30 affidavits in this two day application. A lot of the content in those affidavits is inadmissible because it is hearsay, double-hearsay, opinion or speculation, facts stated that are outside of the affiant’s personal knowledge or facts that have an insufficient foundation. Equally, a great deal of the evidence is irrelevant, unhelpful or clearly self-serving and, therefore, of questionable reliability. …

    “… I find these observations are being traded in a ‘tit for tat’ fashion. I am led to believe this kind of evidence is not uncommon in contested family cases. Common practice is not determinative of admissibility or relevance.

    ” I discourage parties from adducing this type of evidence which, I think, is a passive aggressive tactic. There is no blatant accusation of unfit parenting, but the evidence put forward by one parent is such that the other parent cannot resist answering because the statements or the inferences that could be drawn from the statements are inflammatory. The parties get drawn into a cyclonic battle of the affidavits, often enlisting friends or relatives to contribute more affidavits.”

    Good stuff from a perhaps exasperated judge. I’ve written more about both cases at http://bcfamilylawresource.blogspot.ca/2015/06/get-over-it-part-two-thoughts-from-bench.html.