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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.

"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.



Another study found that 40 per cent of cases handled at the family centres settled all conflicts; among the remaining 60 per cent with outstanding issues, half of them skipped court and eventually worked it out on their own. But court filings tell only part of the story, Dr. Parkinson says. The centres also assist spouses who might have otherwise given up because the cost of private mediation or legal remedies was too expensive. Based on the idea that a divorce is a "reorganization" of the family, and not an end to it, parents may also return for free sessions up to two years later to resolve new issues.

Lawyers such as Michael Cochrane would go one step further, creating a labour-relations-style tribunal, completely separate from the courts, that would provide a range of counselling services and where specialized arbitrators would make binding decisions. "As long as lawyers and judges run the show, it will stay the same as it is now."

And perhaps, Toronto lawyer Judith Huddart says, people might come to their senses sooner if they were better educated about the costs and risks of divorce - long before their first court appearance. A comprehensive and mandatory education program would expose them to other options, such as collaborative law, in which lawyers work together on a settlement. And it would spell out what a hostile divorce does to their kids, as well as their bank accounts.

That cautionary lesson might have spared Tania Thompson long days in court and the $50,000 she paid in legal fees, most of it borrowed from her father. Now a single mom with two young children in Mississauga, she wishes that she and her ex-husband had been ordered into mediation before a judge was even an option. "The lawyers all of a sudden make it more of a tense situation." And a courtroom, she says, is a cold place to reorganize your family for the future.

Erin Anderssen is a Globe and Mail feature writer.

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