Legislating a Family Law Culture Shift
On March 1, 2021, the long-awaited amendments to the Divorce Act, RSC 1985 c3 (2nd Supp) came into effect, changing the word “custody” to the more accurate “decision-making”, expanding on the best interests of the child test, creating presumptions for relocation, and for the first time, recognizing family violence. In addition to these crucial substantive changes, there has been a bubbling excitement among the family law bar about the amendments’ emphasis on resolving family law matters through non-adversarial processes. (E.g.: here and here.) Except where there is family violence, and only where “appropriate”, counsel are required to “encourage” the client “to attempt to resolve the matters” through a “family dispute resolution process”, which includes collaborative practice (“CP”) for the first time (s.7.7(2)(a)). All lawyers are already required to recommend settlement to their clients (R.3.2-4), and court rules often require that parties try to settle before they proceed to trial; but the range of dispute resolution processes recognized has been expanded and the client has an obligation to “try” (s.7.3). In other words, the bar seems to have been set higher in terms of prioritizing the merits of a consensual resolution. The Supreme Court of Canada called for a “culture shift” in civil litigation in Hryniak v Mauldin, 2014 SCC 7, and the culture of family law has been shifting over the last fifty years. The sense is that these amendments are trying to encourage further change, recognizing the need for a culture of reasonableness in family law, and space for non-adversarial advocacy, but not at the expense of rights-based approaches and adversarialism where necessary.
No-Fault Divorce Changed the Culture in 1968
We already changed the culture of family law dramatically in 1968. The introduction of no-fault divorce was thought to remove the adversarialness in family law, or that was the goal. Prior to that, only fault-based grounds of divorce were available, meaning the only way to get a divorce was by proving a matrimonial offence. With the introduction of no-fault divorce, there was no longer a legal requirement to prove adultery, cruelty, or desertion to get a divorce. All parties needed to do was prove breakdown of a relationship, and today that only takes one year of living separate and apart (s.8(2)). Moreover, the change to no-fault divorce fueled an interest in negotiation and mediation in family law. As a result, the 1970’s and 80’s saw a significant increase in interest in mediation across Canada (both court-connected and private), and academic scholarship started to grapple with the lawyer’s role when representing clients in those processes. As a profession, we began to understand the benefits of interest-based negotiation, allowing both parties to win, instead of applying a win-lose mentality to the outcome – a mentality that is usually inappropriate in family law, especially when children are involved. We recognized that an adversarial system is not helpful for most families. For example, in 1990, the Law Reform Commission called the application of the adversarial system to relationship breakdown “one of Canada’s great self-inflicted wounds” and “inherently inconsistent with the harmonious resolution of family disputes”.[1] In short, with the introduction of no-fault divorce, family law sought to change the adversarialness to something better suited to meeting both parties’ interests.
Yet, despite the shift and overwhelming interest in settling disputes on consent, a need remained for rights-based approaches. Cases like Murdoch v Murdoch, [1975] 1 SCR 423, Rathwell v Rathwell, [1978] 2 SCR 436, Pettkus v Becker, [1980] 2 SCR 834, and Sorochan v Sorochan, [1986] 2 SCR 38 worked their way to the Supreme Court of Canada. Women who were left out of the provincial property regimes fought for equal treatment, an equal share of family property at the end of a long relationship. These cases demonstrated that, in some instances, the shift to no-fault divorce was not helpful. A legal battle still needed to be “won” to recognize equality between genders in a marriage or spousal-like relationship. Even then, a family justice system reflective of patriarchal norms was sometimes ill-equipped to impose remedies that would suggest equality. For example, in Pettkus v Becker, Rosa Becker, a common law spouse, won – she was awarded a constructive trust as a remedy for unjust enrichment, a value of $150,000. Her case changed the law for unmarried cohabitants. However, her former partner, Lothar Pettkus, resisted paying. Her lawyer was reported as saying that Pettkus used “every legal tree in the forest of law” to do so. When Ms. Becker finally received $68,000 from the sale of the property held in Mr. Pettkus’ name, the full sum was used to pay her legal fees. In November 1986, twelve years after they separated, Ms. Becker committed suicide, leaving letters that said her death was a “protest against the legal system that prevented her from receiving a penny of the award”.[2]
Collaborative Practice Changed the Culture Again
In 1999, CP emerged in Medicine Hat, Alberta, and then in British Columbia in 2000, before finally making its way to Ontario. Today, there are CP communities across Canada and for the first time CP has been included in the Divorce Act. The practice was developed by Stu Webb and his colleagues in the US in the 1990’s. At that time there was a vigorous debate about the ethics of the collaborative lawyer’s role. The primary focus of that debate was a perceived shift in the collaborative lawyers’ advocacy (and the ethics of the disqualification provision). In the US, the introduction of collaborative legislation effectively quashed the debate. There was never a debate in Canada. (For more on CP and whether it is time to regulate the practice in Canada, see here.)
The birth of CP signaled a cooperative shift in the way family law disputes are resolved, instigated not only by Stu Webb and his colleagues, but supported by their clients. At the same time, a greater understanding of the impact of family conflict on children was emerging. (E.g.: Government of Canada’s Response to the Report of the Special Joint Committee on Child Custody and Access: Strategy for Reform – 1999) Since at least 1968, there have been calls for change to family law. Since at least 2001, report after report concludes that the family law justice system is “broken”. (E.g.: Here, here, and here.) And those same reports often recommend less adversarial approaches to dispute resolution, especially when children are involved. In other words, we’ve known for a long time that less adversarial approaches are often better for family law; they are cost effective, and outcomes are compatible with both parties’ interests, and their children’s interests. Some also suggest less adversarial approaches are safer where there is family violence provided there are protections within the process. But we’ve also known for a long time that sometimes the traditional model of lawyering and the adversarial nature of the legal framework is necessary to meet parties’ needs – especially given the way families are changing (requiring rights-based recognition), and in the context of family violence (requiring additional protections).
The Supreme Court of Canada recently released Colucci v Colucci, 2021 SCC 24, setting out a clear framework for retroactive variations of child support. Drawing from the Divorce Act amendments, the Court recognized that parties need to be encouraged to resolve their disputes on consent. In doing so, Justice Martin emphasized the need for “full and frank disclosure” between parties to support “good faith negotiation” (at para 51), and that the law needs to provide clear presumptions (a clear anchor) so parties can negotiate successfully. Family law is continuing to shift from discretion towards greater reliance on rules and presumptions to support both negotiations and litigation.
Recognizing the Shift and Asking Parties to do the Same
Beyond the crucial benefits offered by the substantive changes to the Divorce Act, the primary beneficiaries of an intended culture shift are the parties. A lawyer can only do what the client instructs, and the law allows. The media portrayal of so-called “custody battles” and public assumptions about what relationship breakdown requires are problematic, inflaming misperceptions of family law. The amendments hope to discourage parents (and their lawyers) from the unnecessary vitriol often associated with a custody battle. The change in terminology – from “custody” to “decision-making” – was “intended to encourage parents to focus on the needs of their children”. A client is also required to do their “best” to “protect any child of the marriage from conflict arising from the proceeding” (s.7.2). Removing the winner-loser implications and ownership mentality of the words “custody” and “access” was suggested before, after the 1998 report “For the Sake of the Children” recommended the change (although that report was in favour of combining them into a shared parenting model). By finally reframing the concepts through federal legislation, I hope the change will be educative and reduce unnecessary conflict. The question remains whether the emotionality of relationship breakdown will allow separating parents to appreciate the change.
Over the years, many of the calls for reform to the family justice system have called for a shift, a ground-up change to the way family law is practiced, particularly given the access to justice crisis. For example, the Action Committee on Access to Justice in Civil and Family Matters, “Meaningful Change for Family Justice: Beyond Wise Words” Report cites a need for a “drastic change” and “fundamental overhaul”, a “paradigm shift”, and a family justice system that is “fundamentally different from what we have known in the past.” These changes to the Divorce Act are not that. They do not fundamentally rebuild what is, arguably, broken. For example, the changes do nothing to prevent litigation harassment, and I am not sure they can change what Justice Himel called a “culture of unreasonableness that plagues the Court” (at para 11). But they do ask parents to reframe the way they think about parenting post-separation, and they do ask all family lawyers to focus on reaching an agreement on consent through a non-adversarial process, if it is safe and reasonable to do so. The changes help deter hyper-zealous incivility. Adversarial advocacy has traditionally been the dominant model in law; reaching back from at least Lord Brougham in 1821, to today, resolute advocacy in an adversarial justice system has dominated the way the profession approaches their role, and the way the public approaches dispute resolution. Family law negotiation operates in the shadows, where behaviour is not bound by procedural safeguards and settlements remain private. Perhaps the bubbling excitement is about further recognizing non-adversarial approaches to family law dispute resolution – for bringing family law negotiation out of the shadows and giving lawyers permission to focus on advocating for settlement.
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[1] Department of Justice, Canada, “Evaluation of the Divorce Act, Phase II: Monitoring and Evaluation” (May 1990).
[2] Mary Jane Mossman, et al, Families and the Law: Cases and Commentary, 3rd ed. (Concord, ON: Captus Press Inc., 2019) at 637.
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