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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 ...

"We have to go back to the basics here, and simplify the process," he says. "Three years for little kids is like forever. It can be catastrophic and ruin their lives."

The worse old days

Unhappy Canadian couples simply stuck it out before the 1960s, when divorce, in most provinces, required the messy business of proving one's spouses had cheated. (In Newfoundland and Quebec, it also required a Senate investigation and an act of Parliament.) The law was more onerous for wives, who also had to prove "incestuous adultery, rape, sodomy, bestiality, bigamy, or adultery coupled with cruelty or desertion." Despite a steady uptick after the Second World War, divorce was rare - in 1961, there were about 6,500. Seven years later, Ottawa created the country's first federal divorce law, both expanding the grounds for divorce and making them gender-neutral - in one year, divorce rates more than doubled, and kept rising.

In 1985, when the government brought in the current no-fault divorce, rates jumped again, peaking at 96,000 in 1987, but they levelled out this decade to about 70,000 a year. (Compared with other countries, Canada's divorce rate falls in the middle of the pack, lower than that in the United States.)

The law does a fair job of ripping up a marriage contract, but it has always had a harder time handling the money and kids stuck in the middle. Or even keeping pace with the modern family. (British Columbia, for instance, is currently overhauling its Family Relations Act for the first time since it was introduced in the late 1970s.)

No one is saying the courts don't have an important role: In the very worst cases, involving domestic violence or child abuse, the law must step in. Some couples need a judge to lay down the law, literally. But family breakups are not fender-benders to be assessed for costs and damages. The adversarial legal system was not designed to deal with bitter spouses, desperate parents or emotion-fraught circumstances that might be complicated by addiction, debt problems or mental-health issues.

The result: cases that drag on, files that get longer, an atmosphere that gets ever more nasty.

How did we get to a place where court time, with all its public expense, goes to deciding who opens presents with Suzie on Christmas morning? Stephen Grant, a veteran family lawyer in Toronto, has seen this kind of bickering so often, he no longer takes child-custody cases. "Divorce is hard enough on families," he says. "And then parents put on their suit and armour and go to court. There must be a better way."

The shape of things to come?

The problem is how to steer couples effectively away from the courts. In some countries, such as Britain, that has meant forcing families into mandatory mediation, although critics have rightly pointed out that in cases of domestic violence or power differences between spouses, this might not always be the right approach.

For many places, reform has gone further, focusing on the health of the family, and providing more than legal assistance or conflict resolution. In Connecticut, for instance, a triage system doesn't simply hive off cases that don't need a court hearing - couples are directed to financial counselling or parenting courses.

Australia has transplanted troubled families away from courts and into 65 Family Responsibility Centres in cities across the country. Parents or spouses who visit the centre sit first with an adviser, who hears their story, and then directs them to the services needed - mediation, addiction treatment, financial advice or parenting support. Some services are provided on site; in other cases, appointments are made elsewhere. Mediation at the centre costs only a nominal fee.



It's not a perfect system: Critics point out that couples must still see a lawyer to make an agreement official. But Patrick Parkinson, a family-law specialist at Sydney Law School who advised the government on the new program cites a 2009 survey that reported a 22-per-cent drop in the child-custody filings among families using the services.

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