03 June 2014

If I Were Tyrant: Three Changes I Would Make to the Legislation on Family Law

In response to my recent post on the unlamented defeat of Bill C-560, a reader asked:
"So if not this bill then what? What improvements would you like to see the federal / provincial government make?"
Although the question presupposes that the bill was intended to address an actual need, it raises a interesting though ultimately vainglorious and egocentric point. What would I do to improve the federal and provincial legislation on family law?

1. Get the federal government out of the corollary relief business.

The Constitution Act, 1867 is Canada's main constitutional document and, among other things, divides the powers involved in running a country between the federal government and the provincial governments. Under s. 91, the federal government has the power to make laws about marriage and divorce. Under s. 92, the provincial governments have the power to make laws about property, civil rights and "Generally all Matters of a merely local or private Nature in the Province."

Even though the federal government could make laws about divorce, it didn't bother doing so until 1968, by which time all of the provinces and territories had developed a good set of laws dealing with things like:
  • the legitimacy of children and establishing their paternity,
  • parenting arrangements after separation, 
  • child support, spousal support and parental support, and
  • the division of matrimonial property.
In passing the first Divorce Act, the federal government decided to include rules about parenting arrangements, child support and spousal support, partly because that's what they were doing in England and partly because these issues were thought to be "necessarily connected" to divorce. Of course, at the time hardly anyone was living in sin. If you were living together, you were married.

Today's Divorce Act still talks about the care of children, which it discusses in term of custody and access, and about child support and spousal support.  It also has rules about divorce orders, when the court has jurisdiction to make divorce orders, when divorce orders take effect, appeals of divorce orders and the recognition of foreign divorce orders.

I don't have a problem with the parts of the act about divorce, of course, but I do have a problem with the rest of it.

First, the Divorce Act only applies to people who are or used to be married to each other. This creates a two-tiered system of laws, with one set (the provincial laws) applying to everyone and another (the Divorce Act) applying only to married couples. The Divorce Act has subtly different rules that distinguish it from provincial legislation, including on variation applications, how people qualify as stepparents and when people other than spouses can ask for orders about children.

Second, the Divorce Act's language of "custody" and "access" doesn't mesh terribly well with the laws of provinces which have adopted more progressive terminology and concepts, like those of Alberta and British Columbia that talk about the care of children in terms of guardians who have parental responsibilities and parenting time, and people who are not guardians who have contact. There is a serious legal debate about guardianship and custody and whether all of the rights involved in guardianship are exhausted by orders about custody or vice versa, besides which the use of two different legal concepts to describe the rights of parents is ridiculously confusing and unnecessary. Quite apart from all of that, why should the provinces' ability to reform family law be at the mercy of the legislative agenda of the federal government?

Thirdly, the Divorce Act doesn't talk about property. This means you have provincial laws that deal with everything involved when a couple splits up and a federal law that deals only with some things. This is confusing and counterintuitive to say the least.

Fourthly, provincial courts generally don't have jurisdiction to make orders under the Divorce Act, including orders about children and divorce, while the provinces' superior courts can make orders under both the Divorce Act and the provincial legislation. Since the provincial courts are generally cheaper to make claims in than the superior courts, and their rules are generally much simpler and written in much plainer language, you often have people starting claims in the provincial court, only to find themselves: getting bumped to the superior court; dealing with orders on the same subject from different courts, couched in different language and possibly on conflicting terms; or having one proceeding in each court dealing with different legal issues.

It really would be so much simpler if the federal government simply got out of the business of custody, access, child support and spousal support, left those issues to the provinces and territories to deal with, and stuck with it's basic constitutional mandate on divorce.

2. Do something about the Spousal Support Advisory Guidelines.

The Spousal Support Advisory Guidelines is a paper prepared by two very well qualified law professors, Rollie Thompson from Dalhousie and Carol Rogerson from the University of Toronto, at the commission of the federal government. Their purpose was to see whether they could come up with a set of rules to guide judges and spouses in making orders and agreements about spousal support, and the Advisory Guidelines is the result. 

As it happens, I found myself generally agreeing with the results the Advisory Guidelines gave for the amount of spousal support payments, although I felt that the results for the length of time during which support should be paid were sometimes too long. The courts liked the Advisory Guidelines too, and over time more and more orders began to be made explicitly referring to the results produced by the Advisory Guidelines.

Professors Thompson and Rogerson never expected that the Advisory Guidelines would become a law, they thought that the Advisory Guidelines would infiltrate the world of family law and be adopted through custom of use. (I'm putting words in their mouths of course.) Sure enough they were right. Although the courts of Alberta have put up a fight, the Advisory Guidelines are regularly used to decided spousal support claims across Canada, and the Court of Appeal for British Columbia has even decided that it is an appealable error for a trial judge not to consider the results of the Advisory Guidelines!

But here's the rub.

First, the Advisory Guidelines are maddeningly vague in places. This is by design; the authors wanted to ensure that spouses and the courts had an abundance of discretion in deciding how the Advisory Guidelines would be applied. (I should know, I wrote a paper called "Obtaining Reliable and Repeatable SSAG Calculations" for the federal government and had lots of chats with Carol and Rollie about these peculiarities.) However, the odd spot of ambiguity has left a lot of people, and a lot of lawyers, scratching their heads when unusual circumstances arise, and from my point of view these ambiguities seriously undermine the certainty the Advisory Guidelines otherwise offer.

Secondly, although some of the mathematical formulae the Advisory Guidelines prescribe are simple enough and can be calculated on the back of an envelope, other formulae are not. The main "with children" formulae, for example, require calculation of the effect of spousal support payments to both parties, net of taxes and statutory deductions, and require a computer program or a doctorate in tax law to figure out. This is a real problem, because the two companies that make the software, DivorceMate and ChildView, charge about $900 for their products and quite reasonably won't sell them to persons not connected with the justice system. (DivorceMate has done a tremendous public service by contributing to a free public support calculator, mysupportcalculator.ca, although the calculator lacks the ability to handle some of the more complicated calculations a lawyer would manage through the commercially-available program.) To my way of thinking, it is unfair and unjust that someone's spousal support entitlement or obligation would rest on a calculation he or she cannot perform manually and cannot purchase the software to perform electronically.

Thirdly, the Advisory Guidelines are not a law or a regulation — they continue to exist only in the form of a lengthy paper — and this, to be frank, strikes me as bizarre. We have, through custom, adopted an academic paper as the means by which spousal support will be calculated in this country, and yet the paper has never darkened the doorway of Parliament to be subject to the review and scrutiny of our elected officials, or even the slight amount of thought cabinet would have given to such a regulation.

If I had my druthers, the Advisory Guidelines, which are fundamentally a very good idea, would be vastly simplified and reduced to a plain-language regulation, with simplified formulae and little or no room for interpretation. It would be compulsory rather than advisory, just like the Child Support Guidelines, and use calculations capable of completion by anyone who can master an income tax return.

3. Eliminate ambiguity.

Family law is a wonderful but maddening area of the law for many family law lawyers. It's wonderful because we provide meaningful help to people in a time of profound need and because it is delightfully complex and requires a knowledge of contracts, torts, tax, corporations, bankruptcy, creditors' remedies and the conflicts of law, on top of a significant psychosocial expertise. It's maddening because there are few, if any, hard-and-fast rules and the result in any given case often depends wholly on the circumstances of the particular couple and their children; a good family law lawyer needs to know the law and be able to assess the circumstances of the family in order to gauge the range of likely fair results.

On the other hand, the ambiguity which lends family law its richness is, or should be, a source of profound irritation for the people involved in a family law problem. You cannot just read the Family Law Act or the Divorce Act to figure out what's going to happen to you, your ex and the children; you have to understand how the circumstances of your family relate to the text of the legislation, and that's something that takes years to absorb. Take child support, for example. The only time the amount of child support payable is absolutely certain is if:
  • all of the children live with the recipient for unquestionably more than 60% of the time,
  • none of the children are over the age of majority,
  • the payor earns less than $150,000 per year,
  • there are no special expenses,
  • neither party has an undue hardship claim, 
  • the payor is not self-employed,
  • the payor is not a stepparent of any of the children,
  • the payor does not have any assets that could be used to generate income, and
  • there is no other reason to impute income to the payor.
Not so simple, is it? And child support is really the easiest issue in family law.

The reason for this confusion is fairly straightforward. When government makes a law, it wants the law to make the most sense for the most people possible. This is what the philosopher John Stuart Mill called a utilitarian approach: government's laws are meant to provide the greatest good for the greatest number of people. In other words, they're meant to work as well as possible for most people, most of the time. However, when a particular family comes before the court, it's not a huge mass of people showing up, it's just that one family, and the judge must take government's utilitarian legislation and apply it to that one family. This results in a conflict between what's best for the individual (the judge's job) and what's best for most individuals (the government's job), and what you ultimately wind up with is a dog's breakfast. This is why family law is so difficult.

Although I suspect that most people would agree with the idea that each family should get the result that's best for them, the conflict between the individual and most individuals yields legislation that doesn't mean what it says it means. The words on the paper that are meant to work for most people most of the time must be interpreted according to the needs and circumstances of the particular family before the court. This creates a huge amount of uncertainty and, fairly frequently, conflicting lines of cases that say exactly the opposite thing about the same problem — the case law on court costs is a good example of this. Of course, uncertainty means that when you and your partner are splitting up, you cannot just look at the law to figure out what should happen, you need to see a lawyer, and the lawyer you consult is taking a guess, although an informed guess to be sure, about what's likely to happen.

Unfortunately, this uncertainty results in people taking irrational positions and taking ill-advised risks. (Isn't this why we buy lottery tickets? Because we think that we just might win?) It also means that spending lots of money on lawyers is somewhat of an inevitability: you need the lawyer's expertise to guide you through the range of possible results, and you need the lawyer to defend you against the irrational positions of your ex.

On the other hand, say we had a system where legal principles were fixed and certain, and the level of discretion available to the court and to the parties was really scaled back. (Decisions relating to children would still rest on their best interests and input, of course.) We would have the benefit of laws that generally meant what they said and didn't need an interpreter to comprehend. The range of likely outcomes would be narrowed, and settlements would be easier to reach. Legal advice would be more certain and less circumstantial. You would know what was going to happen when your relationship ended before you got into it. Less people would go to trial.

All of this sounds good, I expect, but there is a downside. All of the people who need the exceptions to the rules wouldn't get them. For these people, the law would be rigid and inflexible and would absolutely be unfair. But the thing to consider is the extent to which the unfairness to these individuals outweighs the fairness, efficiency, expedience and certainty the majority of people would enjoy from a family law system that is less fixated on single-serving fairness.

And, since you asked, this is what I would do to improve the federal and provincial legislation on family law.