Culture, Ethics and Family Law of Ontario

By Jay Chauhan*

Ontario inherited the English Law which solves family problems in an adversarial legal system requiring each party to make allegations against the other resulting in hostility and considerable anguish to the spouses and children. Statistics Canada confirmed that about 42% of the marriages in Ontario end in divorce in 2008 and about 70% of the litigants in family courts are self represented as the cost of lawyers is too high. The legal system has become complex. Society suffers as the the next generation of children are caught in the conflict of parents or lawyers eager to win. Emotional scars can persist for a lifetime.

To minimize the conflicts over division ofproperty, Ontario has streamlined the family law by creating the “net family property” law concept which requires dividing the property gained in the marriage between husband and wife equally from the date of marriage to the moment of separation. Marriage agreements are now permissible which at one time in the history of the common law were not allowed. Notwithstanding significant changes the family law in the last 30 years, the legal business for family law lawyers is flourishing in Ontario where the breakup of families is now reaching an unprecedented amount of about 45% of all marriages across the country. It is the middle class that suffers the most from the legal system which has not caught up with the reality of family life resulting in about 70% of the litigants appearing before the family courts being without legal representation.

The problem resolution method for resolving family disputes is still adversarial and inherited from England where the parties are required to assert the claim in the family court. Resolutions which care sought in a confrontational environment are difficult and time consuming. In such setting one has to find wrongdoing by the spouse and there is a venting of frustration of the failed marriage. The patchwork development of the legal system, to accommodate the social changes, has become exceedingly complex and the laudable attempts to simplify the mathematics of net family property and other issues such as custody are not adequately addressed through standardized forms and adversarial trials. The broken family’s daily life cannot be mended or managed by the adversarial lawyers or the current legal system. The incalculable loss financially and more importantly psychological trauma of separation and grief cannot be addressed in this legal format. For example, it is impossible to measure the contribution of women made during the marriage in terms of household support provided during marriage.

The institution of marriage being outside the arena of economic endeavour in society it creates difficult problems when the question for resolution is placed before the court as defined categories of claims of property rights, support and custody. When the prior marital relationship was non-economic, it is difficult to place numbers and look for categories in which claims can be made. When family litigation is conducted in the confrontational and adversarial manner, it results in use of legal tactics for the lawyers who use every opportunity to make accusations to the other spouse and use legal procedures to gain advantage of one over the other.

The rate of marriage breaks down has happened at an increasing rate with the changing social environment in Canada in the last 50 years in which women have made considerable strides in economic opportunity and it has resulted in greater degree of self sufficiency and assertiveness. In this environment when the family breaks up the resolution finding methodology usually lags behind the pace of change in society.

In Ontario and in Canada, especially in urban centres, further compounding factors are the social background of the immigrant families which continue their cultural traditions. There is little education provided in understanding of these cultures to the lawyers and legal institutions. Whilst the society is proclaimed to be multicultural, the legal process is still catching up with the multicultural reality in the norms of Anglo Saxon traditions and laws. Many lawyers are left with their own ethics and initiative to understand and deal with the cultures in transition. There is usually very little said in the court about the culture of the litigants. The traditional cultures with strong sense of family are less tuned into the adversarial resolution but have no choice in the matter.

In traditional cultures, where the family structure is more stable with less likelihood of separation, the loss of expectation of permanent marriage creates extreme disappointment and greater degree hostilities when the marriage breaks down. This translates into legal procedures which are used by lawyers in the adversarial procedures to express that disappointment and hostility at considerable expense of the lawyer’s time. It opens the door for the legal profession to either use the opportunity for personal gain for fees or recognize the real need for finding a resolution of the matter. More often than not it is left to the conscience of the lawyer to decide on solutions to the legal problems compassionately or to use it to express hostility and frustration whilst making personal gain.

Finding resolution in the context of different cultures requires reasonable understanding of the culture that one is dealing with. Failure to understand a cultural results in prolonged agony in the court system and a very large amount of expense from the budget of the family where such contingency was never planned for. The policies of the Federal Multiculalism Act which was initiated by the former Prime Minister Pierre Elliot Trudeau and continued in policies by the current Prime Minister Justin Trudeau are rarely discussed or debated in formal seminars of the lawyers. It specifically requires that the diverse cultures of Canada be recognized and promoted.

In more traditional cultures which have not gained economic self sufficiency for women, males play a more dominant role in the family and this role is expressed both inside the family and in social interaction with the outside society. The loss of image and reputation for a failed marriage are a bigger concern for males when it comes to negotiating a resolution. Failure to recognize this role play which is deeply ingrained in traditional cultures, results in significant costs of litigation. Females with lesser financial means and resources, both in traditional and Canadian cultures, face considerable disadvantage in the adversarial process even with legislated appointment of Director of Family Responsibility Office. When lawyers are charging $ 300 to $ 400 an hour for prolonged resolution process, the cost of finding a resolution becomes excessive and out of proportion. The biggest loser in the adversarial process is the innocent child whose rights to survive emotionally, financially, and psychologically is collaterally damaged in the adversarial process even when child’s lawyer is appointed.

In cultures which are in transition after the family migrates to Canada, and where the females are becoming more assertive, the stage is usually set for difficult litigation when there is a breakdown of family unit. This family breakdown rate is even higher in the indigenous communities which had a different tradition of problem solving in conflicts. The tensions of finding a job and adjustment to new country or culture are higher for immigrants and native cultures, and it sets the stage for conflict within the family. When the frustrations of the adversarial process does not adequately and promptly solve the problems, very often the lawyers on the opposite side get blame as it is difficult for the average litigant to understand the abstract adversarial process. The number of cases now dealt with in Ontario on a self represented basis has increased dramatically because families do not budget for legal costs for such eventuality and the legal aid covers only the indigent.

One reason for the agony of family law resolution mechanism is the failure on the part of the lawyers to recognize their special role in compassionate understanding of the psychological and cultural aspects of the family litigation, and balance it with their personal gain. The professional rules of conduct requiring the lawyer to place the interest of client first before personal gain, leaves it open for the lawyer’s personal ethics to determine his or her place in the ethical hierarchy.

Unlike civil law jurisdictions, it is frustrating for the clients in the common law jurisdictions, not to have a real choice of the forum to vent their frustration and find an amicable division of assets and amount of support for the non-earning spouse and pay attention to the future of the child that needs support to survive in a society where education is a prerequisite for survival. It is not always possible in family cases to begin to find a resolution in monetary terms when the past supportive and loving relationship was founded in non-economic terms. It is also difficult in law to have enough categories of claims and rights which can be used to assert in a case that reflects the contribution and support provided in a non-financial environment of the daily family life. Lawyers receive very little or no training in cultural issues or psychological issues even after three years of law degree and another degree before one does law. The net result in many family law cases is extreme frustration of many both in the mainstream community and in ethnic communities.

In my opinion the adversarial process has evolved over time in the Anglo-Saxon tradition and has been modified too slowly to meet the challenges of a breakdown of the basic institution of marriage in society. A more appropriate methodology for problem solving requires moving towards mediation type of resolution and developing other resources for cultural learning of clients with different cultural backgrounds who are engaged in such legal process which is often alien to their cultural norms of some traditional communities. Clients also need education of the problem solving mechanisms available to deal with their issues. It is very difficult for the spouses after separation to have enough trust in the other person for a fair settlement arrangement when conducted directly with each other and many are left with no other alternatives. An ideal resolution mechanism would be mediation system with decision making powers. The mediation panel should be comprised of a lawyer, social worker and a psychologist.

Psychological counselling is very important in such cases, and lawyer is not the best counsellor for this purpose although he or she is often cast in that role. A more civil law inquisitorial type of active solution finding approach could help to lessen the extreme financial, psychological and social cost of finding a final resolution in broken family cases. The private lawyer for fee on an hourly basis creates forums of those lawyers who market their services for their ability to use the heavy handed legal remedies. There are lawyers with a social conscience who announce their services for collaborative law and agree in advance that they will not represent the party if a court hearing is required. Such decision on the part of the lawyer takes moral courage which is difficult for many lawyers to exercise when trained in adversarial process and when personal gain is involved.

Broken families and consequent loss of productivity in the economy and the damage caused to children is excessive. It can leave children scarred for life. There are enough statistics that confirm a high correlation between crime and broken families. Ontario and Canadian society need to give this issue a much higher priority to maintain the quality of life in the country. Our mandate as lawyers in a self governing profession leaves the initiative to us to come up with ethics and solutions of this dilemma.

*Jay Chauhan is called to the bar in several jurisdictions and is a consulting lawyer and has been a Deputy Judge in Richmond Hill for 24 years.