Separation, Divorce or Restructuring?: An Argument for the Latter

The words we use when talking about legal concepts carry a lot more meaning than the dictionary definition of those words; the words we use often reveal something about how we think about those ideas and the fog of cultural values with which they are associated. Language has a surprising impact on how we understand and interact with the world, and I am often astonished by how much my perception of a particular legal concept can change simply by choosing different words to talk about it.

Take, for example, the language we use to describe the care of children after separation. (I'm choosing my words intentionally here.) The federal Divorce Act talks about these legal concepts in terms of "custody" and "access." This was the language used in the original Divorce Act, which became law in 1968, and was a lazy, unevolved borrowing of the terminology used in the first commonwealth legislation on divorce, the United Kingdom's Divorce and Matrimonial Causes Act of 1857. British Columbia's former Family Relations Act, which became law in 1972, talked about custody and access as well, but included an additional term, "guardianship."

What's custody, then, and what's a custodian, a person who has custody of something? In civil law, custody means the right to possess and control an object. In criminal law, custody means the lawful detention of a person against his or her will. However, custody also carries with it somewhat of a flavour of an obligation to care for the person or thing that the custodian controls. The criminal sense of custody implies a duty to attend to and protect the person in custody, and the civil sense can sometimes imply a duty of preservation.

This duty of care business lies at the heart of guardianship, a concept which comes from the civil law of the Roman Empire and first made its way into English law by way of the Guardians in Socage Act of 1267. Although a guardian can be a guardian of property — this is essentially what a trustee does — we usually use the term in relation to persons, and in family law this means a duty to see to the wellbeing of a child and the preservation of the child's property.

Under the Family Relations Act, however, guardianship took a back seat to custody, largely because the Divorce Act only spoke of custody and the Divorce Act is paramount legislation, meaning that when the two laws conflict, the federal law wins. This had the effect of focussing the legal arguments of separated parents on the possession, rather than the care, of their children. Four things flowed from this in terms of the cultural values relating to separation:

1. Custody was often seen as a property right, which distracted parents and lawyers from the best interests and wellbeing of the parents'  children.  

2. The "right" in question belonged to the parent rather than to the child.  

3. Arguments about custody often resolved into an all-or-nothing proposition, which dramatically heightened the perceived consequences of "winning" and "losing" a custody battle and caused parents to invest tremendous importance in the outcome. 

4. The role of the parent who wound up only with access was inevitably trivialized relative to that of the parent who had custody.

Thankfully, at some point in the early 2000s family law lawyers drafting agreements and, somewhat later, orders, began using less conflict-laden words to describe the legal concepts involved in custody, access and guardianship. Access started to be discussed as "the parent's time with the child," "the time the child is with the parent," or better yet "parenting time" and "caregiving time." Guardianship was framed as "parenting responsibilities" and "decision-making duties." Custody could be referred to as "the primary residence of the child" or "the home where the child usually lives," or something to a similar effect.

This sort of language held the virtues of being child-focussed, rather than parent-focussed, and of talking about the care of children in terms each parent could get behind. It also had the effect of transitioning custody from an all-or-nothing choice between polar alternatives to a more fluid range of potential arrangements. (It was, in my experience, far easier for my clients to agree that the other parent would have the child's primary residence — in appropriate circumstances! — plus a certain amount of time with the child than to agree that the other parent would have custody of the child.) Most importantly, it also made family law disputes easier to settle by pulling the schismatic venom from the old language used to describe the care of children.

What was most interesting, in my view, was that the judges dealing with family law matters got on board with the new approach to language in fairly short order. There were plenty of legal arguments to be made that "primary residence" did not mean custody and that "parental decision-making" did not imply the range of legal rights involved in guardianship, yet these arguments rarely saw the light of day. Judges were actually prepared to make and endorse orders using this sort of language rather than the mildewed and conflictual language of custody and access.

The point I'm trying to make here is that this change of language had a profound impact on how lawyers, mediators, arbitrators and judges approached disputes about children, and it had a consequential impact on how parents viewed these disputes as well. Ultimately, this helped to decrease conflict between parents and made it easier to settle arguments that might have escalated out of control using the old terminology. Interestingly, the new language eventually received the government's seal of approval in 2011 with the new Family Law Act, which talks about parents who are the guardians of the children and in that capacity have "parental responsibilities" and enjoy "parenting time" with their children.

There's another change of language I would like to propose which concerns how we think of family breakdown, particularly in the context of family law.

"Separation," "divorce" and even euphemisms like "family breakdown," "splitting up" and "breaking down" are all ways of talking about the end of a romantic relationship, and reveal quite a lot about how we think about, and the fog of cultural values we associate with, the end of such relationships. These terms are all synonyms for severing, disconnecting, detaching, cutting off, sundering and a host of similar ideas; they imply an terminal ending, the cessation of one state and the commencement of another, entirely different state.

Conceptualizing family breakdown as a conclusive rupture of what was once a whole is fine for couples who are casually dating or in a more serious cohabiting relationship but childless. After all, the people in these relationships have a reasonable interest in entering new relationships and moving on with their lives. However, this way of thinking about family breakdown strikes me as problematic for couples that are financially interdependent and couples who have children, particularly for the latter.

Parents rarely have the luxury of watching their former partner ride off into the sunset and washing their hands of the relationship. Whether the child was intended or not, becoming a parent entails a lifelong commitment to care for and nurture that child and almost always necessitates a lifelong relationship with the child's other parent, and this is where the wheels fall off the concept of family breakdown as terminal end: the legal end of the parents' relationship might be the child's emancipation and achievement of financial dependence, but the emotional end is rarely so definitively achieved. Most parents want to be there when their adult child marries, becomes seriously ill, has a child, graduates university, declares bankruptcy or receives professional accolades. As a result, not only does a parent's relationship with a child never disconnect, detach, sunder or rupture, neither do most parents' relationships with each other.

It's not only emotionally unhealthy to conceptualize the breakdown of parents' relationships as a termination, it's legally unrealistic as well. I worry that thinking of final orders in family law matters involving children as actually "final" is self-deceptive and sometimes grossly optimistic. (This is one of the things that makes family law so different from other areas of the civil law, where cases have a both a beginning and an actual, conclusive end.)

A few years ago, I was talking to Jerry McHale Q.C., a former assistant deputy ministry of the British Columbia Ministry of Justice and presently the Lam Chair in Law and Public Policy at the University of Victoria, about justice reform and he described family justice as essentially involving the "restructuring" of families, and this is the change of language I propose.

Although I'd probably practiced family law for ten years by the time of this conversation, Jerry's insight, as simple as it was, crystallized my approach to family law. It elegantly points out that where a family includes children, the "family" does not separate or divorce or breakdown. Families restructure, and my job as a family law lawyer, mediator and arbitrator was to help families restructure and reorganize themselves. My job was to help my clients work out: how the same pool of property and debt would be used and managed by the couple now that they were living apart; how the same financial inputs that the couple had before living apart would be spent maintaining two separate homes; and, how the same parenting resources and commitments that the couple had while living together would be allocated and optimized now that the couple were living apart.

In essence, thinking of separation and family law dispute resolution processes as "restructuring" recognizes the continuation of the separated family as a family, although a family living in two different homes. I can think of at least five benefits that might arise from the constellation of values this way of thinking suggests:

1. It encourages a recognition and holistic view of the multiple relationships that exist within the family, between parents, between siblings and between parents and children. 

2. It discourages an adversarial approach by recognizing the continuing existence of the family and by framing separation as a transition rather than a termination. 

3. It discourages positional attitudes based on self-interest by recognizing that the constituent elements, financial and parental, that supported the family before separation are the same and only constituent elements available to support the family after separation.

 4. It expands the circle of interested parties, normally limited to the parents who are the combatants in the legal dispute, to include their children.

5. It encourages the legal and mental health professionals involved in family law to conceptualize their roles as supporting the family as a whole through its transition from one home to two, rather than as advancing the interests of only one member of that family.

This seems to me to be a healthier approach to separation and dispute resolution, an approach that is child-centred and emphasizes the wellness of the changing family as a whole, than the present approach which is predicated on conflict and dwells more on the self-interest of the individual parents than on the interests of their children. What do you think?

Law Commission of Ontario Releases Report on Access to Justice

Today the Law Commission of Ontario has released an important new report, "Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity." The report provides an important assessment of the strengths and weaknesses of the family law justice system in Ontario and the barriers faced by those who must proceed in court without the benefit of counsel, and makes a number of recommendations as to how the system could be reformed, including an multidisciplinary, holistic approach to family law problems.

Here's the summary from the Commission's press release on the report.

The family law system has been the subject of much comment in recent years and many reports recommending changes to the system. Since 2010, there have been reforms in relation to procedures to address domestic violence against women, provision of information, methods of resolving disputes other than the courts, changes in the courts and other efforts to improve the system. Yet persons facing family disputes still find the system complex and difficult to navigate. The LCO’s Final Report focuses on the initial stages of the system, notably the provision of information, ways of providing initial advice and the interrelationship of legal problems with other kinds of problems.  

The Report emphasizes the need for the system to respond to the evolving pluralist nature of Ontario’s population, and addresses how factors such as literacy levels, cognitive disabilities and, geographic location, among other characteristics, affect how easily people can access and use information, the affordability of legal representation and the degree to which legal problems are affected by other kinds of problems. It recommends the creation or enhancement of multidisciplinary, multifunctional centres or networks that link with “trusted intermediaries” such as cultural centres. “Tinkering with the family law system is not sufficient,” says LCO Board Chair Bruce Elman, “There needs to be comprehensive reform if it is to be made more accessible and effective for those who need it”.

This report adds to the growing number of reports calling for fundamental reform of the family law justice system and is well worth a read.

New Attorney General Announced

Premier Clark announced her new executive council yesterday, including the appointment of Suzanne Anton, a lawyer and former Vancouver city councillor, as Minister of Justice and Attorney General. The former Attorney General, Shirley Bond, who served in that post for the last two years if memory serves, has been appointed as Minister of Jobs and Minister of Labour.

According to the government backgrounder, Minister Anton's priorities will be to:

• work to enhance public safety and security for all BC residents and implement the Domestic Violence Prevention Strategy;
• ensure reforms from our comprehensive review of the justice system are implemented, including greater court efficiencies to reduce backlogs; and,
• begin consultations to modernize BC's liquor laws.

If you can think of anything else which might be a top-three priority, like, for example, properly funding the provincial court, restoring legal aid for family law matters and improving access to justice, leave a comment.

Time Running Out to Complete Important CBA/NJI Survey

A few weeks ago, the Canadian Bar Association distributed an invitation to members of its family law section to participate in a survey being conducted by the National Judicial Institute. Time is running out; the survey will close on Friday 14 December 2012.

The NJI is the primary national organization providing continuing judicial education and the survey is timed for use at the Institute's family law seminar in February 2013. The survey is of particular importance for family law lawyers as it concerns the most difficult of all problems, the enforcement of orders and agreements for access. According to the introduction to the survey,

"This survey is intended to canvas family law lawyers’ opinions on the enforcement of orders and agreements dealing with custody and access. Bearing in mind that the bench has little if any influence over legislative reforms, do the available mechanisms work well or poorly? Could they be made to work better or should they be scrapped and other mechanisms implemented in their place? In particular, how effective are current remedies pursued through the courts?"

If you are a lawyer practicing family law to any significant extent, please complete the survey. It is relatively short and likely won't take more than 15 minutes to complete.

The survey, which is intended for lawyers only, can be found here: survey closed.

Attorney General Appoints Nine New Provincial Court Judges

Attorney General and Minister of Justice Shirley Bond has today appointed nine new judges to the Provincial Court bench. According to the Ministry's press release, Surrey will be getting two judges and Kamloops, North Vancouver, the Northeast district, Port Coquitlam and Vancouver will each get one judge. Two judges will be assigned to work out of the Office of the Chief Judge.

The new judges, almost of whom have backgrounds in criminal law, will bring the judicial complement of the court up to 131.80 full-time equivalent judges, only 12 fewer judges than the court's complement in 2005. 

The Chief Judge, in a statement (PDF) released later today, observes that a number of vacancies are foreseeable over the course of 2013 because of judges retiring or moving to part-time status and notes that the increase in the number of Provincial Court judges resulting from the new appointments will be short lived as a result:

"I am encouraged by today's announcement regarding the appointment of nine new Provincial Court Judges. As Chief Judge, my focus is on identifying and meeting the ongoing needs of the Court, including increasing accessibility to the Court. 

"The early replacement of several Judges scheduled to retire or join the senior program in 2013 will provide some capacity to assist in reducing the case backlog."

New Provincial Court Report: Fewer judges now than in 2010

The Provincial Court of British Columbia has quietly published an updated document (PDF) detailing both new judicial appointments and judges lost to the court between 30 September 2010 and 31 October 2012.

Boiling it all down, the numbers show that the court has a judicial complement of 123.80 full-time equivalent judges now, three judges less than the complement of 126.30 the court had this time in 2010, and twenty judges below the 143.65 judges the court had in 2005.

In 2010, the court published a powerful a report detailing the effects of the short judicial complement on the administration of justice, Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources (PDF), which ought to be mandatory reading for anyone with an interest in Provincial Court matters. The conclusion reached by the court is short and to the point:

"The Provincial Court of British Columbia is the only provincial court in Canada with fewer judges today than in 2005. In fact there are 17 fewer judges, and unless further appointments are made, this will result  in a loss of over 900 trial days in 2010 and over 1600 trial days in 2011.  

"To be effective in supporting the rule of law, and to fulfill its legal obligations to the public, the Court must process cases within a reasonable time. For most cases the Court is legally obligated to provide timely access and, as with other courts across Canada, seeks to manage its caseload according to accepted standards which reflect the relative public interest and priority of the different case types. 

"Given the reduction in the judicial complement the Court is unable to 'keep pace' with the new cases being presented to it. The current inventory of uncompleted cases is growing markedly, as is the delay for all case types other than youth court prosecutions. Increasingly the Court is failing to meet its legal obligation to provide timely access to justice."

The court has now released an update to the 2010 report (PDF), current to 30 September 2012.

Family Law Act: New Resource for Justice System Workers and Advocates

I've put together an overview (PDF) of the new Family Law Act for people who work in the justice system and legal advocates. Please feel free to download and to distribute, reproduce and reuse as you'd like, as long as it's not for a commercial purpose.

This overview will be updated from time to time to clarify issues and correct typos. The current version is dated 7 November 2012 (previous version - 3 November 2012); please download the updated document (PDF).

The Self-Represented Litigant's Bill of Rights ...and Responsibilities

Today I've launched a new page in this blog, The Self-Represented Litigant's Bill of Rights ...and Responsibilities, to which you'll find a link in the list at the upper right-hand portion of this page with a much briefer title, "The Litigant's Bill of Rights."

The purpose of the page is to describe the expectations self-represented persons ought to have of the people they meet on the way through a court proceeding: the court staff who assist in court processes, the lawyers who may act for the other parties, and the judges and masters who hear case conferences, applications and trials. The page also describes self-represented persons' obligations to learn about court processes and procedures and the law that applies to the proceeding they are involved in, and to treat court staff and judges with courtesy and respect.

This page is a bit of a work in progress. It represents only my views and opinions, and I fully expect that others will take a different perspective on things; in all likelihood I have put emphasis in the wrong place and overlooked things that should be discussed. I welcome your comments, questions and criticism.

This page is a contribution to the larger discussion I think we need to have about the functioning of the justice system in a tough economic climate where lawyers are becoming increasingly unaffordable and both the courts and legal aid programs have become distressingly understaffed and underfunded. As such, the page may be reused, republished and redistributed without restriction.

Courts Issue Rare Statement on Judicial Independence

On 8 February 2012, the Premier announced a new review of the justice system in this province, describing the review as:

"...a reform initiative to address B.C.'s justice system and identify actions that government, the judiciary, the legal profession, police and others can take to give British Columbians more timely and effective justice services."

The review is not setting sail rudderless; it is intended to address certain issues identified in a green paper (PDF) the government released the same day. This is how the executive summary of the green paper frames those issues:

"This Green Paper is intended to highlight several key issues within the justice system of British Columbia. These issues include the way independence is preserved, the way information and processes are managed, and the way change is implemented.

"While significant progress has been made within the justice system in recent years, problems of cost and delay are appearing to a degree which is increasingly unacceptable. Action is required due to the reliance of British Columbians, their families and our economy on a sound system of justice.

"While the system’s basics – its integrity, its personnel and its ability to innovate – remain strong, indicators of the system’s performance and current health give a mixed and confusing message, particularly in the area of criminal justice. 'Inputs' into the system such as the rate of crime and the number of new cases are down. But the length of time spent by people remanded in custody or on bail awaiting trial is increasing, as is the total number of people being managed by the Corrections system. Costs, too, are increasing in real terms.

"The system is complex and challenging to reform. While it is possible to point to areas where a discussion of reform is warranted, it is also true that there are significant issues of culture and tradition within the system that may impede real understanding and change. Standing above this is the issue of independence of decision-making within the system. It is vital for our democracy that the exercise of judgment in criminal and civil cases – by police, by counsel, by judges and others in the system – be free of interference or influence. At the same time, the close linkage between the different parts of the justice system in managing case files, and our need to explain what is happening within the system, means we must administer the justice system as a system. In doing so, we must remain on strong constitutional grounds."

In reaction to the green paper, which included statements to the effect that judicial independence "should not be used as a shield against scrutiny on issues related to public administration," the courts of British Columbia issued a rare joint statement (PDF):

"We always welcome the opportunity to engage in dialogue with Government and other justice system participants on the issues and challenges facing the justice system. A fully functioning justice system is an essential element of a free and democratic society governed by the rule of law. Any suggestions for improvements to that system merit serious consideration.

"Such a review, however, must recognize that the various participants in the justice system operate within a constitutional framework. That framework places certain responsibilities on the participants and is founded on an independent judiciary. Any recommendations for reform must respect the constitutional framework in which we operate."

Today, the courts followed with a lengthier statement (PDF) explaining the basic apparatus and functioning of the Canadian legal system and the critical importance of judicial independence in elegant but accessible language. The joint statement clearly is intended to address the review and some of the government's messaging about the review (for example, "It has been suggested that judges may use independence as a 'shield' against scrutiny. This is a mistaken view."), but stands on its own as a compelling explanation of the need for an independent judiciary:

"There is a critical distinction between the police and Crown prosecutors on the one hand, and the judiciary on the other. The police and prosecutors are in the employ and within the authority of the executive branch of government. Although required to exercise their duties impartially and independently, at the end of the day they are agents of the Crown.

"Judges by contrast are not subject to the direction or control of the executive branch of government.

"There are sound reasons for this. Government, in its many manifestations, is frequently a party to court proceedings in an adversarial role. For example, the state is behind every criminal prosecution. Government agencies are frequently either parties to court proceedings, or are subject to having their decisions reviewed in the courts. Courts are called upon to decide disputes between our Aboriginal peoples, and various levels of government, or government agencies. Courts also have to rule on the validity of legislation, as to whether it is within the powers given to the Legislature or Parliament by the Constitution, and whether it conforms to the requirements of the Charter of Rights and Freedoms."

The court's unusual public comment on the review was not intended to signal a fundamental hostility to the idea of the enquiry and exploration, merely to remind everyone, and government, about the essential structure of the Canadian legal system and the importance of maintaining the independence of the judiciary from the executive branch of government. The statement concludes thusly: 

"The judiciary is always open to discussing ways to improve the administration of justice. Indeed, all levels of court have engaged in extensive discussions with government officials over the past several years with a view to achieving that end. In being open to discussion, however, the judiciary will remain steadfast in protecting the essential elements of judicial independence, as the precursor and guardian of judicial impartiality."

Read the Globe & Mail article on today's statement.