Divorce in Ontario: Ignore The Obvious At Your Peril

Before I became a Mediator I was in Family Court. I always recall the response I received from His Honour John McDermott, a sitting Family Court Judge in Newmarket, Ontario, when I asked him for a court order to compel my former spouse and co-parent to disclose her financials. This was 2 years into our divorce proceedings and I was still waiting for my spouse to comply with an earlier court order. and I told him the system was broken.

His reply? “Yes, it is, but it is the only system we have and you are in my courtroom.” It was a reply that he delivered with genuine empathy but unmistakable authority. And it brought to my mind the phrase ‘willful blindness’ – that state of deliberate ignorance.

The night before my exchange with Justice McDermott, I finished a Margaret Heffernan book called ‘Willful Blindness: Why We Ignore The Obvious At Our Peril’, a book that deals with some of the world’s great injustices. (See also her TED talk here.) I experienced a rush of anxiety.

My blood felt like sand running through my veins. It was followed by the realization that my family ( I had three children aged 6, 9 and 13) were at peril. Our finances had already taken a beating in those 2 years and they were likely to take even more of a hammering.

After all, my lawyer was charging $350 per hour and the ominous ticking of the meter running was ringing in my ears. In my mind’s eye, I had visions of me scaling down a 20,000 foot mountain called Divorce In Ontario.

Yet I only had 10,000 foot of rope. I was going to run out before I reached the end and plunge into the abyss. It was a situation I could no longer ignore, and while it was too late for the money that had already gone, I had to do something to stop more damage being done to the family finances. I had a powerful sense of being cheated, lied to and taken advantage of.

Raised to be a proud Canadian, in a compassionate country governed by the rule of law and fairness, suddenly and shockingly, my eyes had been opened to things most Canadians never have to see – the seedy underbelly of my nation. And it did not feel good at all. From that moment on, I knew I had to do whatever I could to prevent others being exposed to this dark side of Canadian life.

People get as much justice as they can afford, unfortunately people cannot afford much justice!

Family justice in Canada is reaching a breaking point. And yet many separating spouses are forced to apply for a divorce in flawed and floundering system.

These reports were responsible for spurring a spate of reform initiatives across Canada, but much like Anna Cools’ earlier attempt, they merely fizzled in most of Canada without fully taking off, the exception being British Columbia where reforms were made.

It shows that reform can happen. And just how quickly was aptly illustrated following the legalization of same sex marriages. In a lightning-fast 3 months, the legal changes were made to the Divorce Act to ensure it applied to same sex couples –  a new revenue stream right there for lawyers to exploit! Perhaps that helps explain why change happened so quickly?

Lawyers can always be relied on to slow down change, as has been illustrated across Canada. Yes, there have been changes, but these have just applied to the use of words, as in Alberta in 2005 where any terms that suggested conflict such as ‘custody’ were replaced with ones that were focused on softer-sounding ‘parental responsibilities’. British Columbia did something similar eight years later, while Nova Scotia reviewed their word usage and decided to keep terms such as custody in 2017. But now there is a bill in that territory that proposes sweeping changes to the Divorce Act, following the trail blazed by Alberta and British Columbia.

Changes that will increase the factors that need to be considered when assessing the interests of children in separation cases. Another change happening right now is the implementation of early intervention initiatives designed to reduce conflict between spouses and seek opportunities for an amicably negotiated settlement.

I have replaced the words “custody and access” with the words “on-duty and off-duty” parenting in agreements for 10 years. Why? because at the end of the day..parents are always parents. Regardless if the parents are with the children, acknowledgement and respect goes along way when arriving at a settlement. More change is afoot in certain territories, and not before time.

Unified Family Courts, first established in Ontario back in 1977 and designed to streamline processes and improve divorce outcomes are due to finally arrive in Alberta in 2020. But why the 43-year wait? Especially after a Canadian Research Institute Report in 2016 revealed that most family lawyers practicing in areas with a Unified Court agreed they simplified procedures, provided citizens with easier access to family justice services and produced more tailored divorce outcomes.

Enough of the detailing the faults with the current situation. Time to suggest some ways to improve things. And let’s start by saying that more legal aid funding isn’t the answer. It simply isn’t on the cards, although it’s something that has been requested for decades.

Right now, legal aid funding for Family Law matter is only available to those on social assistance (for the most part). If you make minimum wage or above, forget it. Similarly, a reduction in lawyers’ fees isn’t going to happen anytime soon. Those expenses we outlined earlier remain. So we need to look elsewhere.

To start making changes, lawyers need to be encouraged to take on more family law work on an unbundled basis. Many see such unbundled services as not being proper work, and work that pays poorly.

They prefer to take an all or nothing stance, selling a bundle of unnecessary services to clients, or refusing to take on their case. My clients have told me that unbundled services are more accessible and affordable.

They also help them better understand the law and their options. The key here is finding a lawyer who’s prepared to offer unbundled services and give reasonable advice without trying to steer the case towards full-blown litigation.

People other than lawyers should be activated to assist clients with legal problems relating to their divorce, both in and out of court. Lawyers have held a monopoly on the delivery of legal services for long enough. And it’s now more evident than ever that the services they provide haven’t been compatible with the needs of the public.

They have failed. And this is so clear for all to see that surely there is a government official somewhere in the halls of power who is thinking that if the law industry continues to stand in the way of progress, to thwart innovation and fight to retain a status quo that isn’t fit for purpose, then the government needs to take their social licence away.

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MPP Bailey Speaks to Provincial Parliament

After all, it’s been over 20 years since Anna Cools first advocated the need for change. The underswell of opinion shifting in favor of change probably explains recent shifts in stance by law societies in British Columbia and Ontario, in terms of letting non-lawyers offer legal services. This has resulted in amendments to the Legal Professions Act in British Columbia.

Of course, anyone offering more affordable legal services should be properly trained, fully insured and their conduct regulated by a code of ethics. And the services they are able to offer would need to be closely regulated by the government, the bench and the bar. In tandem with this, supporting the resolution of family disputes by routes that don’t involve litigation is crucial.

Family law is a special kind of civil dispute. There must be an end to the vast expenses being spent on a way of resolving disputes that’s inefficient, time-consuming and destructive to families, especially those with children. Precious little funding is going to areas such as counselling or mediation, and none at all to supporting private mediation services or arbitration or even collaborative negotiation.

These are services that have the best interests of families and their children at heart, and promote the importance of resolving disputes and disagreements quickly and cost efficiently. Surely they are deserving of a share of the public purse?

There is also a case for removing family law matters from the court process entirely. They require their own system with adversarial and non-adversarial options, as well as other education based services, such as parenting after separation, conflict management, employment and housing support, counselling for mental health matters and the like.

The key focus would be to promote the well-being of any children involved, with additional attention to be paid to getting parents to co-operate. All its rules should avoid legal jargon and be written in easy to understand language, tailored to the needs of families living apart. It’s encouraging to see that change is happening, but it’s saddening and maddening that emotional damage and financial ruin has been allowed to continue for so long by the wilful blindness being shown by public officials and law lobbies.

This can be equated to the wilful blindness shown by tobacco companies when the damaging effects of smoking were known. The sweeping changes to the federal Divorce Act contained in Bill C-78 are a step in the right direction, but also merely a flash in the pan. There are deeper, structural issues to be addressed before divorce in Ontario can change for the better. And changes have to happen now.

It is no wonder so many informed separating spouses see family law as a toxic environment. Something to stay far away from and that is a good thing, The not so good part is when they short change themselves of a clear, certain and durable separation agreement. Given the state of divorce in Ontario, you can not blame them for taking matters in their own hands and draft their own separation agreement. Heck, I did the same back in 2007 before I became a mediator and later developed THE Soft Landing Divorce Settlement Method. You can read my separation agreement story here, I hope you can learn from my mistakes, I know I did.