Get Over It, Part One: Why It Pays to Let Bygones Be Bygones in Family Law Disputes

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 breakdown. 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, 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 1857 and agreed that people could get divorced, we weren't prepared to simply walk away from a centuries-old dedication to permanent misery. As a result, you couldn't just say talaq, talaq, talaq and be done with it, you had to get a judge to make a divorce order and that meant proving that you met the legal test to qualify for divorce.

If you had the good fortune to be male, you could ask for a divorce under s. 27 of the 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 — my favourite — "desertion without reasonable excuse" for at least two years.

We in Canada 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?);
• 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. You can imagine the havoc wrought when success or failure hung on proof of your misconduct during your marriage, or that of your spouse.

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 custody.

Now the thing about people 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. (Terrible lawyers who fail to steer their clients away from this line of thinking certainly don't help.) This brings me to the point of this particular post: it is both idiotic and expensive to take positions in family law disputes because of your hurt feelings or desire for revenge. Let me give you 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 your brain. The simple truth is that if you walk into court with positions like these, you will lose. None of these positions are supported by the law or the legislation. Not only will you most certainly lose, but:

• your legal fees will be much higher than they would otherwise have been;
• you may be ordered to pay your spouse's costs of the application, the trial or the whole of the court proceeding;
• the enmity you feel toward your spouse now will last far longer than it normally would, and your spouse is certainly going to share the sentiment; and,
• you will likely lose the respect of your children and, I hope, of your 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, irresponsible behaviour. Likewise I have no issue with someone's use of pornography, unless the pornography involves children or he watches pornography 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. 

Now consider, for a moment, how your 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 in court papers, whether they're true or not, and tend to fight fire with fire. I guarantee that your spouse is not going to write an affidavit admitting to everything. Instead, your spouse will file a stern response that not only denies the truth or extent of the claims you've made but asks for costs, and will then write an affidavit talking about all of your 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. 

But what do you think the court does in circumstances like this? Each person is behaving like a child, busy throwing 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, you see, does not want to deal with people who come to court with problems, complaints, grievances and 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:

• dropping arguments and claims that are based on your own feelings of woundedness or your spouse's purportedly immoral behaviour;
• avoiding mention of historical events that are not genuinely relevant to the claims before the court, no matter how much those events upset you and continue to upset you;
• keeping your complaints about minutiae and the mundane to yourself;
• writing affidavits that are maximally factual, avoid invective and use a minimum number of adjectives and adverbs;
• agreeing to obligations that you cannot avoid;
• making claims that are minimally controversial, like asking for a divorce based on separation even though you could also ask for a divorce because of your spouse's infidelity; and,
• proposing rational solutions that look to the future, that work for everyone and that are likely to promote the best interests of your children.

Put more simply, you must grow up and let bygones be bygones. Trust me; this will redound to your benefit, that of your spouse and those of your children.