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Lucas Kott looks over legal bills as his two children play in the living room at his home in Vancouver, British Columbia, Thursday, March 24, 2011. Lucas Kott, 49, is heavily in debt after fighting over custody of his two children with his ex-wife. (Rafal Gerszak/Rafal Gerszak for The Globe and Mail)
Lucas Kott looks over legal bills as his two children play in the living room at his home in Vancouver, British Columbia, Thursday, March 24, 2011. Lucas Kott, 49, is heavily in debt after fighting over custody of his two children with his ex-wife. (Rafal Gerszak/Rafal Gerszak for The Globe and Mail)

Why Canada needs a split from its messy divorce laws Add to ...

Love is grand, the saying goes, divorce is 100 grand.

True words for 49-year-old Lucas Kott, a self-employed construction worker who estimates that after all the lawyer's fees, affidavits and court appearances, he and his soon-to-be ex-wife will have spent nearly $125,000 arguing over custody of their two young children. His half has already put him $20,000 in debt, even before a five-day trialscheduled for the fall - money he knows would have been better spent on his kids. Now, he can't afford to move out of his two-bedroom Vancouver apartment.

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"There is a lot of emotion. You are at the mercy of the lawyers," he says. And, unlike with many breakups, there was no haggling over property. "This is not a decision about what kind of parent I am, or what kind of parent my wife is. It's the process that is very complicated."

The family-law system in this country is a wreck. A study by the Law Society of Upper Canada found that, on average, it takes three years for a litigated Ontario divorce involving children to stumble through family court, and by then, in addition to the heartache and turmoil, a good chunk of retirement savings and college funds has disappeared.

Toronto family lawyer Michael Cochrane once did his own rough math: To cover the public costs (courts, police services, children's aid, mental-health resources) and the private bills (for lawyers, forensic accountants and child-custody consultants), a marriage that ends would have to cost $50,000.

Instead, municipalities charge about $150 for the right to get hitched. For the 38 per cent of Canadian marriages that are doomed, a nice dinner would have been a better investment.

There are about 70,000 divorces a year in Canada. Many couples manage to hash it out on their own, and walk away with bank accounts largely intact - though just a couple of case conferences with lawyers can quickly surpass $10,000. The very rich can buy private justice behind closed doors with pricey mediators.

But the less well-off, who can't agree or don't know better, wind up in court, weighed down by motions and affidavits before well-meaning judges who may or may not have expertise in family law.

This adversarial system makes combatants of parents, and a growing number of spouses show up without lawyers at all because they can't afford fees, which only drags their cases out longer. The more money wasted, the more time spent squabbling over who takes the kids at Christmas or the value of that second-hand Toyota, the angrier everyone gets.

If the state has no business in the bedrooms of the nation, courts certainly have their hands full managing the rest of the house. "Why would we allow families to be put through this wringer? The answer is that this is the way we have always done it," says Mr. Cochrane, who has been practising family law for 31 years and has become increasingly vocal about the need for reform. "If there was ever a new country invented, and the government asked us what kind of family law they should have, no one would ever recommend what we've got."

Canada is not alone - many other jurisdictions are struggling to find a cheaper and gentler way to break up a family without shattering it. Starting in April, nearly all divorcing couples in Britain will be required to participate in mandatory mediation before a judge hears their case. In Australia, the government has funded a $200-million (Australian) nationwide network of family relationship centres that counsel to and mediate for separating couples - especially parents - free of charge.

Some experts continue to make the case for treating divorce like a labour-relations matter, to be heard before a similarly styled tribunal. One of the more vocal proponents for overhauling the family-law system is the Chief Justice of Ontario, Warren Winkler (see facing page), who would like to see mediation as the presumptive first step for almost all couples - a condition already in place in Quebec - and a "triage" judge who could screen cases and divert them away from the court, as several jurisdictions in the United States now have in place.

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