[Divorcemanagement]

Interesting thread.

As someone who works in the family law system, there is truth to the assertions that fathers make about bias running rampant through the system, at the same time there is also truth to the assertions that mothers make about being victimized by divorce laws.

The Divorce Act is probably in need of a makeover, but is shared parenting going to become the law of the land? Will child support legislation change to something other than the guidelines? Will pensions no longer be divisable? No, no and no.

The existing system we have sets court (an inherently adversarial process) as the final arbiter for disputes between parents. It will always be adversarial because that's the nature of law - amid adversity, the truth is bound to emerge.

What separates family law from criminal law, for example, is that while there is a burden of proof in both systems, the family law system allows for either side to make wild allegations about each other without requiring evidence to back it up. Now let me back up for a second.

Are men and women imperfect? Yes.
Did men and women create our existing laws? Yes.
Do men and women preside over family law matters in their capacity as a judge? Yes.
Are men and women imperfect? Yes.
Are you going to get perfect justice every time? No
Why?
Because men and women are imperfect.

Law is a rule book. An imperfect rule book, but a rule book nonetheless. Family law, unlike other forms of law, is often a barometer of our current place in time as a society. 40 years ago, it took an act of Parilament to grant a divorce.. now it doesn't. My mother who divorced in 1962 lost everything she had, inheritences, her home - everything - because she intiated a divorce in a period of our history where divorce simply wasn't done.

Flash forward to 1986 - a new law governs divorce. It introduces the concept of "no fault" to the process - it makes divorce easier to obtain. The trade off is that while it is easier to obtain (on paper) increased rights and responsibilites for both men and women mean that there is much more to divide - from the kids the the dining room set. What happened as a result was an initial spike in the divorce rate after the law changed in 1986, and a levelling off of divorce rates over the last ten or so years - hovering around 40% nationally.

Flash forward to 2006 - now we have twenty years of the current law. We have a generation of children from the 1986 law obtaining divorces of their own. We have increased numbers of second marriages failing because of ongoing litigation from the first marriage. In my area of work, it is very common to have men and women on their second failed marriage entering the divorce process.

No, the system isn't perfect and it never will be perfect. Emphasis needs to be placed on doing to high conflict divorce what we, as a culture, did to cigarette smoking or drunk driving - make it socially unacceptable behavior to engage in high conflict divorce. Will that happen? Probably not. Why? Because divorce is a downer that married people don't want to talk about. It's a political hot potato (everyone who has a history in the system knows about the general dysfunction of the Joint Senate Parliamentary Committee on Custody and Access hearings back in 1998.)

A perfect law will never exist. Mandatory shared parenting might be seen as a means to eliminate all of the fighting, but the reality is that in order to eliminate the conflict, you have to change people's behaviors. A shared parenting law will not change behaviors because there will always be parents out there who believe they are right and their former spouse is wrong.

So what is the alternative?

A vigorous national debate about divorce and it's impact on children. Period - end of story. Open dialogue about how the lack of programs and services for families in the process acts to increase conflict. A national discussion about the cost of accessing justice and whether there is an alternative method of dealing with dispute that can be implemented - say, for example, mandatory mediation/arbitration.

It's not a perfect world - I wish that it was. For every father's rights guy who says the system is biased, I want to introduce them to some of my female clients who have been out of the work force for 15 years and are now unemployable and who are economically dependent on their former husbands. For every mother who thinks it is her divine right to be in charge of the kids, I want to introduce them to the fathers who are taking every conceivable parent education, anger management and divorce education program known to man and who still face a wall when they try to get more time with the kids.

I think education is key in changing attitudes. Not just for those who make the decisions about family law, but for the public in general. We don't talk about divorce as a culture because as a culture, we are in love with the idea of marriage. Proof of this can be seen in last year's national debate about same sex marriage.

Opponents of same sex marriage were vociferously pointing out that SSM would destroy traditional marriage. Hypocrisy! How can SSM destroy traditional marriage when nearly half of the straight people out there are doing a pretty damned good job of it all on their own? What made me really mad was that you would think that such an obvious thing as this would have been picked up by the news media - but no. Why? Because it would have driven news coverage from same sex marriage to straight people marriage and maybe we aren't quite ready to talk about the fact that so many people in Canada see divorce as a massive, unsolvable challenge.

Divorce is hard work. I have worked in the system long enough to know that changing laws does not change attitudes - time does. Social acceptance of an alternative method of looking at divorce and it's impact can occur when there are feasible alternatives being made available. The last place anyone should be is in a court room - so why not talk about alternatives to court?

The system can change, but people have to change themselves to make whatever system we have - work.