A lot of the law is based on obscure legal principles, whose origins date back hundreds and sometimes thousands of years. Criminal law and business law can be like that.
But family law as we know it has only really existed in Canada since 1968’s amendment of the Divorce Act permitting no fault divorce after three years of separation, reduced to a one year waiting period in 1986.
Although family law court litigation remains mired in procedural technicalities - despite repeated attempts to simply it - the law upon which such litigation is based can be simplified to two core principles. Embracing these principles enables you to predict with some accuracy the results of all disputed family matters! Seriously.
The principles are: (1) fairness, and (2) best interests of the child. That’s it. This is not an oversimplification.
On many levels, so called “family law” is barely even “law.” Rather, it's more social policy that happens to be administered by judges because no one can think of anyone better to entrust with it. There have been repeated calls to take family law out of the courts - even by some family judges - but to date other than the advent of mediation and collaborative family law which might work in less adversarial situations, no one has come up with any alternatives that really work.
What does fairness in the family law context mean?
The principle of “fairness" is at the root of family law division of property calculations (mostly 50-50, with some notable exceptions), family law spousal support calculations (generally limited to the amount of time necessary to enable a spouse to be self-supporting, but could be lifetime for older spouses in long term relationships because of sacrifices presumed for relationship), and child support calculations (now tied directly to payor’s income through a prescribed formula, with “special and extraordinary expenses" like camp or dental care shared between spouses proportionate to relative incomes).
What do best interests of the child mean?
The "best interests of the child" principle is at the root of why the courts continually urge maximum contact with both parents, and support findings that it is the parents and not the children who should be making any sacrifices consequential to the breakdown of their relationship. Thus the courts support disrupting a child’s routine as little as possible notwithstanding parental preferences, and any established “status quo” is highly likely to be maintained by the courts, unless it is clearly not in the best interests of the child.
How does knowing these two core principles of family law help me?
First, knowing enables you to understand that family lawyers aren’t black arts sorcerers capable of invoking ancient legal family law texts to achieve perverse, shocking and unpredictable family law results. Family law is not rife with obscure loopholes that let one spouse get or lose all the money and children. Who gets the money and children will be based on fairness and best interests of the child.
Second, knowing enables you to predict with some certainly the ultimate outcome of family law proceedings, regardless of how much money and time you or your former spouse spend on lawyers and the court system. True, there are some outlier results. You could be lucky or unlucky enough to draw a particular judge who leans one way or the other on your facts, and you might have achieved a different result with a different judge. But appellate courts will always be hovering overhead, ready to overturn perverse results that don’t accord with normal conceptions of fairness and best interests of the child.
Why you need evidence and legal advice to take advantage of the principles
Knowing something, and being able to implement that something, are not always the same thing. Knowing should give you confidence, and enable you to make rationale decisions based on likely results. But operationalizing knowledge of the family law world requires one and possibly two additional ingredients beyond the core principles
First, you need to know that in establishing what fairness and best interests of the child really mean practically on the ground, you need to amass evidence. Documents. Witnesses. Expert reports.
Without evidence, family courts are left in a vacuum. And lopsided evidence, where one party produces almost all the evidence - usually not surprisingly evidence in that party’s favour - can lead to lopsided, unfair results. Results that really aren’t fair and aren’t in the best interests of the child if the real balanced truth had been known, but courts can only base their application of those two core principles on evidence, not on solely the argument and conjecture of the parties.
Second, you need to realize the lawyers really are helpful in advancing these two core principles, largely because of all those procedural technicalities that lie in wait to trip you up. Family lawyer help that stays out of court can be very affordable. For those with the lowest incomes, government funded legal aid may be available - especially where children are involved. But even for those who already are in court, and who have to pay themselves, approaching your case as a collaborative effort with your lawyer, where you both carefully make strategic decisions that maximize the value of every dollar you spend is likely to lead to the best outcome, at the most reasonable cost.
I do get that if you are up against someone utilizing scorched earth tactics in family court, with that person either being represented by a lawyer or acted as a self rep, your legal representation costs can become a major challenge. There, you might need to rely on what are sometimes called unbundled legal services, where a lawyer assists you behind the scenes, and you do some of the work yourself.
I’ve unfortunately seen some truly shocking, tragic results where one party has had a lawyer, and the other party is completely without any legal advice - despite those two most sensible core family law principles. It shouldn't be that way, but it is.
Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com.