18 February 2015

Separation, Divorce or Restructuring?: An Argument for the Latter

The words we use when talking about legal concepts carry a lot more meaning than the dictionary definition of those words; the words we use often reveal something about how we think about those ideas and the fog of cultural values with which they are associated. Language has a surprising impact on how we understand and interact with the world, and I am often astonished by how much my perception of a particular legal concept can change simply by choosing different words to talk about it.

Take, for example, the language we use to describe the care of children after separation. (I'm choosing my words intentionally here.) The federal Divorce Act talks about these legal concepts in terms of "custody" and "access." This was the language used in the original Divorce Act, which became law in 1968, and was a lazy, unevolved borrowing of the terminology used in the first commonwealth legislation on divorce, the United Kingdom's Divorce and Matrimonial Causes Act of 1857. British Columbia's former Family Relations Act, which became law in 1972, talked about custody and access as well, but included an additional term, "guardianship."

What's custody, then, and what's a custodian, a person who has custody of something? In civil law, custody means the right to possess and control an object. In criminal law, custody means the lawful detention of a person against his or her will. However, custody also carries with it somewhat of a flavour of an obligation to care for the person or thing that the custodian controls. The criminal sense of custody implies a duty to attend to and protect the person in custody, and the civil sense can sometimes imply a duty of preservation.

This duty of care business lies at the heart of guardianship, a concept which comes from the civil law of the Roman Empire and first made its way into English law by way of the Guardians in Socage Act of 1267. Although a guardian can be a guardian of property — this is essentially what a trustee does — we usually use the term in relation to persons, and in family law this means a duty to see to the wellbeing of a child and the preservation of the child's property.

Under the Family Relations Act, however, guardianship took a back seat to custody, largely because the Divorce Act only spoke of custody and the Divorce Act is paramount legislation, meaning that when the two laws conflict, the federal law wins. This had the effect of focussing the legal arguments of separated parents on the possession, rather than the care, of their children. Four things flowed from this in terms of the cultural values relating to separation:
1. Custody was often seen as a property right, which distracted parents and lawyers from the best interests and wellbeing of the parents'  children.  
2. The "right" in question belonged to the parent rather than to the child.  
3. Arguments about custody often resolved into an all-or-nothing proposition, which dramatically heightened the perceived consequences of "winning" and "losing" a custody battle and caused parents to invest tremendous importance in the outcome. 
4. The role of the parent who wound up only with access was inevitably trivialized relative to that of the parent who had custody.
Thankfully, at some point in the early 2000s family law lawyers drafting agreements and, somewhat later, orders, began using less conflict-laden words to describe the legal concepts involved in custody, access and guardianship. Access started to be discussed as "the parent's time with the child," "the time the child is with the parent," or better yet "parenting time" and "caregiving time." Guardianship was framed as "parenting responsibilities" and "decision-making duties." Custody could be referred to as "the primary residence of the child" or "the home where the child usually lives," or something to a similar effect.

This sort of language held the virtues of being child-focussed, rather than parent-focussed, and of talking about the care of children in terms each parent could get behind. It also had the effect of transitioning custody from an all-or-nothing choice between polar alternatives to a more fluid range of potential arrangements. (It was, in my experience, far easier for my clients to agree that the other parent would have the child's primary residence — in appropriate circumstances! — plus a certain amount of time with the child than to agree that the other parent would have custody of the child.) Most importantly, it also made family law disputes easier to settle by pulling the schismatic venom from the old language used to describe the care of children.

What was most interesting, in my view, was that the judges dealing with family law matters got on board with the new approach to language in fairly short order. There were plenty of legal arguments to be made that "primary residence" did not mean custody and that "parental decision-making" did not imply the range of legal rights involved in guardianship, yet these arguments rarely saw the light of day. Judges were actually prepared to make and endorse orders using this sort of language rather than the mildewed and conflictual language of custody and access.

The point I'm trying to make here is that this change of language had a profound impact on how lawyers, mediators, arbitrators and judges approached disputes about children, and it had a consequential impact on how parents viewed these disputes as well. Ultimately, this helped to decrease conflict between parents and made it easier to settle arguments that might have escalated out of control using the old terminology. Interestingly, the new language eventually received the government's seal of approval in 2011 with the new Family Law Act, which talks about parents who are the guardians of the children and in that capacity have "parental responsibilities" and enjoy "parenting time" with their children.

There's another change of language I would like to propose which concerns how we think of family breakdown, particularly in the context of family law.

"Separation," "divorce" and even euphemisms like "family breakdown," "splitting up" and "breaking down" are all ways of talking about the end of a romantic relationship, and reveal quite a lot about how we think about, and the fog of cultural values we associate with, the end of such relationships. These terms are all synonyms for severing, disconnecting, detaching, cutting off, sundering and a host of similar ideas; they imply an terminal ending, the cessation of one state and the commencement of another, entirely different state.

Conceptualizing family breakdown as a conclusive rupture of what was once a whole is fine for couples who are casually dating or in a more serious cohabiting relationship but childless. After all, the people in these relationships have a reasonable interest in entering new relationships and moving on with their lives. However, this way of thinking about family breakdown strikes me as problematic for couples that are financially interdependent and couples who have children, particularly for the latter.

Parents rarely have the luxury of watching their former partner ride off into the sunset and washing their hands of the relationship. Whether the child was intended or not, becoming a parent entails a lifelong commitment to care for and nurture that child and almost always necessitates a lifelong relationship with the child's other parent, and this is where the wheels fall off the concept of family breakdown as terminal end: the legal end of the parents' relationship might be the child's emancipation and achievement of financial dependence, but the emotional end is rarely so definitively achieved. Most parents want to be there when their adult child marries, becomes seriously ill, has a child, graduates university, declares bankruptcy or receives professional accolades. As a result, not only does a parent's relationship with a child never disconnect, detach, sunder or rupture, neither do most parents' relationships with each other.

It's not only emotionally unhealthy to conceptualize the breakdown of parents' relationships as a termination, it's legally unrealistic as well. I worry that thinking of final orders in family law matters involving children as actually "final" is self-deceptive and sometimes grossly optimistic. (This is one of the things that makes family law so different from other areas of the civil law, where cases have a both a beginning and an actual, conclusive end.)

A few years ago, I was talking to Jerry McHale Q.C., a former assistant deputy ministry of the British Columbia Ministry of Justice and presently the Lam Chair in Law and Public Policy at the University of Victoria, about justice reform and he described family justice as essentially involving the "restructuring" of families, and this is the change of language I propose.

Although I'd probably practiced family law for ten years by the time of this conversation, Jerry's insight, as simple as it was, crystallized my approach to family law. It elegantly points out that where a family includes children, the "family" does not separate or divorce or breakdown. Families restructure, and my job as a family law lawyer, mediator and arbitrator was to help families restructure and reorganize themselves. My job was to help my clients work out: how the same pool of property and debt would be used and managed by the couple now that they were living apart; how the same financial inputs that the couple had before living apart would be spent maintaining two separate homes; and, how the same parenting resources and commitments that the couple had while living together would be allocated and optimized now that the couple were living apart.

In essence, thinking of separation and family law dispute resolution processes as "restructuring" recognizes the continuation of the separated family as a family, although a family living in two different homes. I can think of at least five benefits that might arise from the constellation of values this way of thinking suggests:
1. It encourages a recognition and holistic view of the multiple relationships that exist within the family, between parents, between siblings and between parents and children. 
2. It discourages an adversarial approach by recognizing the continuing existence of the family and by framing separation as a transition rather than a termination. 
3. It discourages positional attitudes based on self-interest by recognizing that the constituent elements, financial and parental, that supported the family before separation are the same and only constituent elements available to support the family after separation.
 4. It expands the circle of interested parties, normally limited to the parents who are the combatants in the legal dispute, to include their children.
5. It encourages the legal and mental health professionals involved in family law to conceptualize their roles as supporting the family as a whole through its transition from one home to two, rather than as advancing the interests of only one member of that family.
This seems to me to be a healthier approach to separation and dispute resolution, an approach that is child-centred and emphasizes the wellness of the changing family as a whole, than the present approach which is predicated on conflict and dwells more on the self-interest of the individual parents than on the interests of their children. What do you think?


  1. Excellent article, JP. Sending this comment from Nanaimo Justice Access Centre (JAC) where as the lead/managing Family Advice Lawyer (FAL) after twenty years in small-town private practice I now work with both my fellow lawyer and non-lawyer colleagues - including Family Justice Counsellors (FJCs) - who believe strongly in this same approach. Maybe we should all put our heads together to devise some form of Hippocratic Oath for family lawyers! :-) You mention UVic Prof. Jerry McHale - I was lucky enough to meet Jerry, when he was still at the Justice Ministry, some 5 or 6 years ago at a public reception for the new JAC here in Nananio, and we talked at some length about the desperate need for more ADR focus (mediation, collab law etc) rather than the relatively-barbaric litigation process where that is avoidable, as often it really is. I was impressed then by his passion on this topic. On the bankruptcy topic you mention in passing above, I was talking the other day to a chartered accountant who is also a trustee in bankruptcy - he told me that nowadays what he advises clients on is called not "bankruptcy" but rather - you guessed right - "financial restructuring".

  2. The following questions, comments and concerns are unusual enough that lawyers I have approached are uncertain of how to apply the Family Law, in the best interests of the child.
    How does the law accurately measure a wealthy retired parent income and responsiblity to child support? The parent retired from 2 practices and has significant assets, yet determination of his child support appears only to include his Revenue Canada declared OAC and CPP. He does not declare income from all sources, inside or outside Canada, nor does he declare sales of personal property or his holding company property sales and subsequent disbursement to the sole beneficiary, himself. Records and admissions of the sales and confiscation of our family joint account are in his affidavits. But his lawyer will not include with the calculation, claiming his client only base for child support is on the OAC and CPP amounting to $24./mo. which he has never paid.
    How do I introduce the US child benefit that is being withheld by this parent? The US law states Social Security (which Child benefits are) are the right of the child, not the parent.
    We were threatened by my husband, precipitating the separation under advisement of the police to get safely and securely away 1.75 yrs ago. My daughter (now 16yrs) who has her own issues with her father wishes to be emancipated from him. She submitted to my lawyer privilaged information. She wishes to state her position, but in chambers with the judge and a child advocate, is that possible? My lawyer advises that her father's lawyer will attempt to tear the child appart in court. Trial is upcoming in April 2015.
    We are without financial backing to continue much longer with the lawyer we have, and the venue of trial is assigned to a distant small city where the lawyers have all been approached by my husband who has resided there for 40 years, thus eliminating them as my representative. The lawyer he has represented me several times in the past, most recently with my will. He disclosed the contents of my will to my husband creating a breach of confidentiality at the time. I had my lawyer ask him to step back as legal representation against me, due to conflict of interest and serving two masters, but my husband's lawyer declined. On this basis can I ask for him to be dismissed at trial or refuse to answer him based on the conflict of interest?
    As the venue is in another city, I may be facing court on my own, with my witnesses, files, unfamiliarity of court proceedings and my ineptness. I will not however be railroaded, and will hold truth and the best interests of my child in hand.
    It has become uncomfortably apparent that the client with the most funds in lengthy legal matters prevails when the opposing client cannot pay to obtain a chance for justice.
    I appreciate your interest and consideration in this multifaceted unusual matter.

    1. I'm sorry, but I can't give you legal advice. I will, however try to give you some information.

      The income issue is all about what's called "imputing income," in other words getting the court to agree that the payor has, or should be considered to have, more income than he says he does. Say, for example, that a payor earning $50,000 a year decides to retire at the age of 50 and live off $10,000 a year doing casual labour. If the payor's decision is voluntary and there's no medical or other reason why he can't work full-time, the court's not likely to let him pay child support based on $10,000. The court would likely make him keep paying at the rate of $50,000 (it would "impute" that income to him) on the basis that his children shouldn't suffer as from his decision to retire early.

      In situations like yours, the recipient's job is usually to give the court enough information about the payor's income and potentially available income to show that he should be considered to have more income than he says he has. This is difficult, because you need evidence. However, the rules of court, especially those of the Supreme Court, are full of ways that you can force the other side to produce documents and give information under oath.

      As far as lawyers are concerned, the lawyer-client relationship is an employee-employer relationship. A client can fire his or her lawyer whenever the client wishes like, the same what you'd fire your plumber. The client also has the right to complain to the law society about any of the lawyer's behaviour or services with which the client is unhappy. You do not need to have a lawyer to make a complaint to the law society.

      You really must get some proper legal advice about your options, although in fairness your case is not as usual as I think you think it is. Please speak to a family law lawyer who isn't conflicted out of seeing you. If you can't find a lawyer, you can call the Lawyer Referral Service. Their number is in the phone book and the lawyer they refer you to will only change your $25 for 30 minutes of his or her time.

  3. Well, you won't post this but I'll just send this to you anyways to call you out on your dishonesty. Here we go, your quote:

    "There were plenty of legal arguments to be made that "primary residence" did not mean custody and that "parental decision-making" did not imply the range of legal rights involved in guardianship, yet these arguments rarely saw the light of day"

    "Never saw the light of day", huh?

    Oops, except for this one (referenced from your own blog no less, http://bcfamilylawresource.blogspot.ca/2013/05/the-melnick-model-of-joint-custody.html) :

    "His Lordship then made an order for joint custody, adapting the Joyce model for application under the Divorce Act as follows:"

    ....."5. in the event that the parties cannot reach agreement on a significant decision despite their best efforts, the party with the *primary residence* of the child will be entitled to make those decisions and the other party will have the right to apply for an order respecting any decision the party considers contrary to the best interests of the child, under s. 16(1) of the Divorce Act; and "

    So...yeah...the "Boyd Model" which has nothing to do with using non-decisive terminology like "Primary" in it (sarcasm) to make every thing just peachy....uhm... except for entitling the the non-primary/queen parent to:

    "The spouses will have joint custody of the child and the spouse without the child’s primary residence will have the right:

    to be informed of the child's medical and dental practitioners;
    to contact the child's medical and dental practitioners and obtain the child's medical and dental records;
    to be consulted with respect to the selection of the child's alternative caregivers, such as daycare and preschool;
    to consult with the children's alternative caregivers and teachers;
    to be informed of events at the child's schools or daycare so that the parent without primary care may attend;
    to be informed of parent/teacher nights so that the spouse may attend;
    to be consulted with respect to any significant health issues relating to the child; and,
    to be consulted with respect to any significant change in the child's social environment."

    This is what you advocate: the non-primary parent will be responsible for joint parenting(decision making) but will be defined as only having to be *informed* and *consulted* on in case of a disagreement...but...will have no decision making power in case of a disagreement....but has the right to be informed in case that the parent with "the primary residence" makes the decision...right...

    So, *as you say* there are plenty of examples of cited case law where parents were happy to have this type of conversation:

    Parent B: I don't want my 13 year old daughter having breast augmentation. It's not healthy!

    Parent with the The Numero Uno #1 House: I'm the Primary Parent. Errr sorry "Primary Residence" and we disagree. I say she gets the surgery!

    Parent B: Ooops! Sorry parent with the The Numero Uno #1 House! I forgot. My bad.


    You're an intellectual liar and I just proved it.

    Maybe you won't post this but, feel free to post some case law where Judges dismissed "primary residence" arguments that attempted to trump "joint custody" disputes. I actually could use it.

    Don't worry, I'll wait till you get back to your office...

    1. Thank you very much for your comment. I'm afraid you've misunderstood a point I made in the introduction to the main theme of my article, which concerned the power of language to shape our perceptions of a legal issue.

      Neither of the two articles you cite are inconsistent with my statement that arguments about the different in legal meaning, if any, between "primary residence" and "custody" and "parental decision-making" and guardianship. Both concern means of defining the rights entailed in custody and guardianship. I also didn't say that judges dismissed primary residence arguments over joint custody, and I'm afraid I really don't understand what your concern is.

      You do, however, appear to be very angry with me and I'm not sure what offence my articles have caused. Please feel free to call me if you'd like to discuss any of your concerns. My direct line at work is 403-216-0341. I'd really be happy to talk.

    2. It was an awkward sentence and I read it late.

    3. I'll take more care with my sentence structure in the future, but my invitation for you to call me is still open. Not too many people call me a liar and dishonest, so if there is anything you'd like talk about or say to me, please call. I'd welcome the opportunity to talk.

    4. I have your three additional comments. I'm afraid I've run out of patience with your personal attacks against me and my profession.

      I won't be publishing any more of your comments until you muster up the courage to call me at the number above to discuss your concerns. You needn't worry about having called me a liar; your insults are crude and juvenile but don't otherwise bother me, and I don't plan on suing you or whatever else it is that worries you when you talk about "outing" yourself as "the guy who called a lawyer a liar." I'm at work from 7am to 5pm, Monday to Friday and irregularly on weekends. I look forward to talking to you.

      In the meantime, thank you for your continued interest in this blog.

    5. I now have your fourth comment. I'm not going to engage in an online debate with you. I'm more than happy to talk about your concerns with me, family law in general and shared custody, however you'll have to give me a call.

  4. Come to think of it clean up the language guy, why don't I make it really simple for you:

    Define "Primary Residence".

    Difficulty: Must show your work.

    1. Primary residence is not a term found in the Divorce Act, the Family Law Act or the Family Relations Act. It's a term that lawyers and judges started to use some time in the early 2000s or late 1990s as a way of describing the home where the child usually lived. This was particularly useful when parents had joint custody and joint guardianship, as many of the models used to define parents' responsibilities -- the Joyce and Horn models that you allude to in your previous comment -- gave the parent with whom the child usually lived the power to make decisions when the parents couldn't agree, and "primary residence" was an easy way of identifying the parent.