Family Justice 3.2: Empowering Families to Address the Sequelae of Separation

In this note, I propose a model of family justice that’s less of a model of family justice than it is a model of family-centred social services, and places primary responsibility for post-separation decision-making on the family itself. Unlike my two previous posts on the subject, Family Justice 3.0 and Family Justice 3.1, this model does propose a fundamental restructuring of how we approach family law disputes. This proposal draws from my thinking on the changes in perception that can flow from conceiving of family law dispute resolution as “family restructuring”, assumes that family wellbeing is a basic social good which should be fostered whether the family lives under one roof or two, and assumes the people best positioned to address the consequences of separation are the family members themselves.

I have often been struck with the realization that my job as a family law lawyer was, in many ways, absolutely bizarre; rewarding for sure, but bordering on the surreal. I suspect that part of this cognitive dissonance stemmed from the fact that we still, in the twenty-first century, handle family law problems with largely the same toolkit as we do shareholders’ grievances and motor vehicle accidents. This makes sense from a historical perspective. Two of the most important results of the Norman Conquest were the triumph of the common law over highly divergent, localized custom and the establishment of the curia regis, from which the court of common pleas, the court tasked with hearing disputes between commoners, would shortly emerge. When the 1857 Divorce and Matrimonial Causes Act stripped the ecclesiastical courts of their power over judicial separation and the matrimonial torts it naturally placed that power in the hands of the Queen, to be exercised on her behalf by the newly-minted Court for Divorce and Matrimonial Causes. And so, when the divorce court was transferred to the High Court in 1875, family law disputes came to be handled by the same bench under the same rules as applied to other species of civil law.

And yet family law is not like any other species of civil law. The purpose of family law is not to find financial redress for a past wrong; its purpose is to find workable solutions for the future. Family law disputes do not involve self-interested parties engaged in arm’s-length transactions; they involve interdependent family members involved in intimate emotional relationships. Family law problems are not resolved by the application of legal tests with bright lines; each family law problem is different and, regardless of precedent, is resolved by the application of general principles to the unique circumstances of the particular family before the court. Family law disputes do not close with the last avenue of appeal; they close long after the final appeal, when the children are emancipated and financially independent, and sometimes not even then.

There’s a good argument to be made, I think, that family law matters don’t belong in court at all; I strongly suspect that this would resolve my conflicted thoughts on the subject. If you happen to harbour any doubts, consider the phantasmagorical spectacle of an unrepresented husband cross-examining his wife on the circumstances leading to their separation.

There may be another way of dealing with the legal issues arising upon separation. Thinking of family law dispute resolution as family restructuring rather than family breakdown allows “family” to be treated as an organic whole that changes and evolves over time as new family members are added through birth, adoption, marriage and remarriage; as parents separate and the family transitions into new domestic arrangements; and, as existing family members are subtracted through abandonment, estrangement and death.

This way of thinking about family is not necessarily as irrational as it at first seems. The reality of separation is that the family has precisely the same constituent resources afterward as it did before. As a result, my essential job as a family law lawyer was to help my clients work out: how the pool of property and debt accumulating during the relationship would be used and managed by the parties now that they were living apart; how the same financial inputs that existed before living apart would be allocated to maintain the family in two homes; and, how the same parenting resources and commitments the parties had while living together would be distributed and optimized now that they were living apart. The family continues to exist after separation, only in two houses not one.

This approach to family is holistic and dynamic, it discourages the taking of positional attitudes based on undiluted self-interest, and it allows the lawyers, judges and other professionals involved in the family restructuring process to address the complex issues separation raises in terms of the health, wellbeing and vitality of the family as a whole. It also brings me back to the main point of this note by calling into question the wisdom, and necessity, of addressing family law disputes through the same legal process that handles wrongful dismissals and real property disputes.

In this model of family justice, I propose that the burden of families’ transformation from one home to two should presumptively lie on the shoulders of the families undergoing this metamorphosis, with government-funded social services available to support the family pre- and post-separation, in the same manner as health care, and to provide interventions in the event of crisis. Access to court would be available through the family services agency to address urgent, interim matters relating to wellbeing of family members and threats to the family’s economic stability, but access would be provided on the process used in child protection matters in which the court confirms steps taken by child protection authorities unless those steps are found to be unreasonable. Access to court would otherwise only be available by judicial review of agency decisions and appeal of agency arbitrators.

Shifting Responsibility to the Family

All of this is easy to say, of course, but getting there will be another matter altogether. If you accept the proposition that the locus of responsibility should be shifted to the family, the next step involves identifying the supports and cultural changes that are necessary in order to support the family in this role. The cultural changes must address the empowerment of families to be self-determining as well as contemporary attitudes toward dispute resolution. The supports must provide the knowledge, resources and skills necessary to overcome imbalances of power between separating adults.

1. As I have noted elsewhere, we don’t do much to teach people about the rights and responsibilities involved in creating a family, and the rights and responsibilities that arise when families separate, never mind the options available to resolve disputes after separation. Given our cultural expectations about how legal conflicts are resolved, it’s not surprising that when a couple are separating it is court that they inevitably turn to, especially if they are not represented by counsel and emotions are running high. Changing these expectations requires improving the legal literacy of our population, which must be addressed in primary and secondary schools as a component of basic civics. The education of our children must include dispute resolution, legal capacity building and personal responsibility for the resolution of one’s own legal problems.

2. Imbalances of power, whether emotional, financial or educational, must be resolved in order that spouses may bargain freely and fairly. This can partly be addressed by providing general education in law and legal processes, but would likely best be supported through the family services agency, described below, which would provide counselling services, help understanding financial issues and information and advice about the law applicable to separating families.

3. Legislation on family law issues will continue to be necessary, but more as a framework that sets out the parameters of potential results and minimum expectations, thereby establishing benchmarks of fairness. In order to empower families to develop the solutions to restructuring that are best for them, it will be necessary to depart from highly codified principles such as the precise amount of child support payable under the Guidelines, the calculation of the duration and quantum of spousal support under the Advisory Guidelines and the presumptively equal division of property. The Guidelines, the Advisory Guidelines and principles relating to the division of property will remain available as recommended outcomes, but if a couple wish to trade mortgage payments for child support or a lesser payment of spousal support in exchange for another good, so be it. Needless to say, the legislation must be as accessible as possible, which will likely require a significant simplification of the present paradigm.

Family Services

The primary mission of the family services agency would be the promotion of family wellness throughout families’ lifespans. It would provide an adaptive continuum of support to promote general wellbeing, address common but difficult life events such as separation, the death of a family member and parenting crises, and foster socially valuable qualities such as financial health, emotional health, relational health, physical health and educational health. It would have the capacity to deliver emergency services in all contexts, not just that of separation.

From a social services perspective, the family services agency would combine a number of existing social service functions and a number of functions presently provided by court services in some jurisdictions. These could include all or some of the following, provided on a scalable, as-needed basis:

• Parenting assistance and education
• Parenting after separation counselling and education
• Separation support and counselling
• Grief counselling
• Mental health assistance
• Respite care assistance
• Nutritional and physical health counselling
• Disability assistance
• Housing services
• Education assistance
• Truancy and delinquency counselling
• Financial planning / debtor’s assistance
• Social assistance / welfare services
• Employment services and employment insurance assistance
• Navigation of government service
• Dispute resolution education

From a holistic legal services perspective, the family services agency could provide:

• Legal information and advice services
• Youth criminal justice services
• Child protection intervention and assistance
• Assistance with landlord tenant problems
• Assistance with employment problems
• Elder law services
• Wills and estates assistance
• Dispute resolution services, including arbitration

I imagine that the services specific to separation would include education about the law, legal advice about the range of potential outcomes, development of parenting plans, counselling for adults and children, financial planning, negotiation support, and mediation and arbitration services. Although the emphasis of the agency’s services would be assisting cooperative dispute resolution, it would have the authority to take steps without the consent of the spouses, in a manner similar to the exercise of power by child protection agencies, and issue temporary, binding determinations on matters such as:

• The distribution of parenting time
• A parent’s ability to move with the child
• Child support and spousal support
• Payment of household expenses
• Matters that would otherwise normally lie within parents’ decision-making authority.

The family services agency would be able to refer families to court when orders relating to the wellbeing of the family or members of the family are required on an urgent basis and a court order is necessary, as might be the case where a problem requires the involvement of third-parties such as schools, doctors and therapists, banks, the police and border guards.

Where families are unable to reach agreement on the legal issues arising from their transition to two homes and attempts to resolve those issues through non-adversarial processes have failed, the agency would direct the families to arbitration. The arbitrator would develop the rules and procedures to be used in consultation with the spouses, with an eye to ensuring that the level of process matches the capacity of the spouses and is proportionate to the complexity of the issues involved. The result of the arbitration would be a conclusive and binding arbitral award addressing outstanding legal issues.

The services of the agency would continue to be available to families after separation as they were before. The agency would be capable of assisting with the continuing evolution of the separated family, as children grow and financial circumstances change.

Family Court

A unified family court, with superior court jurisdiction, but governed by simplified rules similar to those used in most provincial courts, would be available to hear applications for interim and final orders, both contested and by consent, on subjects for which the authority of the court is desirable, including:

• Personal protection orders
• Financial protection orders
• Non-removal orders
• Return orders
• Exclusive occupancy orders

Access to court would otherwise be restricted to the judicial review of temporary determinations made by the family services agency and the appeal of arbitral awards.

There is a school of thought that presently supports the idea that families should take ownership of family law disputes and their resolution. After all, the argument goes, who is better placed to determine the future course of the separated family and the best interests of the children than then family itself? I’m sympathetic to this view, but I also recognize that significant cultural, social and legal changes must occur for families to be property supported in such a capacity.

Whether we reject court as the primary forum for the resolution of family law disputes as I propose in this note or not, my imagined family services agency may be a useful way of supporting families in general. We as a society have a great deal to gain by better promoting the wellbeing of families generally. I expect that healthy families are more stable; that the children of healthy families have better educational and emotional outcomes; that healthy families produce higher levels of functional literacy and educational attainment; and, that healthy families consume fewer social resources and contribute more to the economy. A family services agency with the supportive, continuing mandate I suggest would likely be good for all of us.

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.