Ethics in Family Law:
Is Family Law Advocacy a Contradiction in Terms?
Presented to the Advocates' Society Conference in Nassau, Bahamas
2 December 1995
by Justice Mary Lou Benotto
The best barometer of the fear and derision of a society is humour. There is always an element of truth in humour. Thus, we should take heed at the descending quality of lawyer jokes which truly bottom out when it comes to divorce lawyers. It is the basis for this fear and derision, the kernel of truth in the humour that I will address. That unhappy underbelly of our practice which generates justifiable hostility in the public and for which we must take responsibility. For we are the architects of a system that, at best, does not work to resolve domestic disputes and, at worst, is highly destructive to the fabric of society - the family.
THE LITIGATION TRADITION
For Canadians born in 1960, the likelihood of divorce is 33 percent. For those born in 1970, the likelihood is 40 percent (Statistics Canada). Over three-quarters of Canadians are married. Many more are involved in common-law relationships which give rise to legal rights and obligations. So the chances of encountering the judicial system on relationship breakdown are high.
If you are unlucky enough to encounter the system you will find there is no model for divorce outside the context of the adversarial system, so inevitably husband and wife become adversaries. Litigants and lawyers do what is expected: they fight. The problem is that most people, regardless of the anger and hurt, do not want to fight. They want it over. But the forces of our litigation culture, our training and our comfort level in an adversarial practice move the family (lest we forget it still is a family) inexorably away from settlement until irreversible damage is done.
The techniques perfected in other areas of litigation are being rolled into the family law courtroom. Inflated claims, speculative legal theories and scorched earth tactics are a routine part of counsel's arsenal. Think of what this does to an ongoing relationship.
Walter Olson, in his book, The Litigation Explosion, said:
The unleashing of litigation in its full fury has done cruel grave harm and little lasting good. It has helped sunder some of the most sensitive and profound relationships of human life: between the parents who have nurtured a child...and those whose life and well-being are entrusted to their care....It seizes on former love and intimacy as raw materials to be transmitted into hatred and estrangement.This is particularly troubling when those who used to look to the Church, religious advisors or sheer force of tradition for rules to live by now expect the Courts to resolve the most profound and intimate of issues.
THE SHIFT IN SOCIAL VALUES
This dovetails with another disturbing tend which, in the view of many, threatens to undermine the moral fabric of society. It is the popular culture of refusing to accept responsibility. Alan Dershowitz calls it "the abuse excuse."
An article in Psychology Today, cited a survey of mothers in 1924 asked to choose three traits they wished their children to develop. Half chose "loyalty to the church," 45 percent chose "strict obedience," 31 percent chose "good manners." If you are older than forty, this was the world your mother was born to. By contrast, in 1988 these qualities were overwhelmingly rejected in place of "independence" and "individual happiness."
This seemingly innocuous shift in values has established roots from which a new moral code is flourishing. It is one in which an individual's rights exist without reference to responsibility. We are in danger of becoming, in the words of Charles Sykes: "a nation of victims." In his book, aptly titled The Decay of the American Character, he chronicles how we have forgotten the concept of responsibility. It is socially acceptable to portray oneself as a victim."
We are seduced into a state wherein we absolve ourselves from all responsibility for bad actions. A corollary to this is the concept that disease applies to behaviour rather than merely biology. Since disease is caused by forces beyond our control, no moral responsibility can attach to us for bad actions.
Dr. Stanton Peele, in his book, The Diseasing of America, says bad behaviour has become an illness. We are therefore not guilty, just sick. Lawyers especially love this. We have:
- The case of a district school employee fired for consistently turning up late for work successfully suing his employer because he is a victim of "chronic lateness syndrome." (School District of Philadelphia v. Friedman, No. 2073 C.D. 7 April 1986, Pennsylvania Commonwealth Court)
- An FBI agent is fired for embezzling $2,000 from the government. He took the money to Atlantic City and lost it all. The Court reinstated him because his affinity for gambling with other people's money is a handicap and thus protected under federal law. (Rezza v. United States Department of Justice et. al. No. 87-6732, 12 May 1988, U.S. District Court, Eastern District of Pennsylvania)
- A man in Wisconsin is turned down for a job as a park attendant because of his long criminal record of exposing himself in public. He successfully sues on the basis that he is being discriminated against because he has only exposed himself in libraries and laundromats, not in public parks. (Mike Royko, "Wisconsin Puzzle Solved in a Flash," Chicago Tribune, 7 April 1988)
THE RESULTS IN FAMILY LAW
Family law litigation has now embraced and enhanced these innovations which develop their own character borne of the uniqueness of the domestic relationship. In my opinion, the worst results are found in four areas:
- abuse allegations
- the ugly affidavit
- the winner-loser syndrome in custody cases
- the use of delay for strategic advantage
ALLEGATIONS OF ABUSE
Domestic violence is abhorrent. I have never found a judicial officer who treated physical cruelty with anything but the seriousness it deserves. However, the term "abuse" has been diluted beyond all proportion. There is scarcely a separated spouse who does not believe that he or she was in an abusive relationship. Abuse is a powerful term. But it is routinely used to describe shouting, badgering, voice raising, walking away when angry. Think for a minute about your private relationship. So as not to raise a bald allegation, the particulars given of the marital discord become very detailed. This leads to the problem of the affidavit.
THE UGLY AFFIDAVIT
The nature of a family law case is that the interim motion is often the most important single event in the proceeding. In the last five years, the number of motions in family law has increased by 150 percent. (Ministry of the Attorney General)
Evidence is presented by affidavit. Human nature is such that it is far easier to lie on paper than in the witness box. As stated in the Ontario Civil Justice Review, First Report, (p. 272) the single greatest complaint about lawyers by members of the public was with respect to the damage to family relationships caused by the allegations in these affidavits - where, it is widely acknowledged, perjury is rampant and, moreover, goes unpunished.
As barristers, we worry lest an allegation go unanswered. We therefore respond in kind and this continues the snowball on its course down that treacherous hill.
Nowhere is the effect of the litigation process more devastating than in a custody dispute. As stated by Robert McWhinney,
The terror, for parents of a court-ordered custody determination, is not the staggering fees, or the shame of one private intimacy or indiscretion after another being exposed in affidavits, or the confusing punishment of cross-examination; nor is it the fear of losing custody per se. The real terror is that, in the possibility of losing the right to parent their own child, they might thereby ultimately, lose their relationship with their child: the experience of loving their child, of influencing and helping and knowing their child.
The loss of custody relegates one parent to inferior status, diminishes the person's importance in the child's life. Where men lose custody of their children, they are more inclined to drift away from the child. This is not necessarily out of mean-spirited motives but the result of the ongoing and irreversible hurt inflicted during the proceedings, proceedings in which the issue was: who is the better parent. What could possibly touch one's soul more? The custodial parent then often becomes, in effect, a single parent - most often working full time. So in the end, the child is the real loser.
The effect of custody disputes on children is devastating. To again quote Mr. McWinney (p. 101):
The majority of children regard the loss of a parent as the single most negative aspect of separation and divorce. Children also worry that if their parents can stop loving each other, they could surely stop loving them as well; and parental custody battles seldom persuade a child that he or she is greatly loved.
If one is concerned only with the narrow adversarial approach to family law, then it is fair to say that delay will, in most cases, benefit one party to the detriment of the other. Our system encourages this:
- orders for pre-judgment interest are not routine;
- retroactive orders are difficult to obtain;
- status quo is an important feature in custody cases;
- the recipient of a low interim support order, who is frugal and foolish enough not to go into debt before trial will be met with the argument that she (as recipients are usually women) clearly does not need more.
Recently in motions court I heard a lawyer arguing that no interim child support should be ordered because then the wife would have no incentive to settle the case. I found this more appalling than did the Judge, which told me that it had probably been heard often before. Starving children for tactical gain not only earns us a bad reputation, it passes a legacy of hate throughout the family.
There is also the emotional strain and increased legal costs which are suffered by the whole family. Remember that money is never "awarded" but merely re-distributed within the family. Thus, by definition, the family can never be better off after divorce.
WHERE WE GO
We have a responsibility to restructure the system to afford an opportunity to give the public what it wants - an early, fair settlement.
All the statistical studies of our courts confirm that less than 3 percent of cases actually proceed to trial. Why, then, are we operating a system that caters to that 3 percent and not to the 97 percent? There are over 600 rules and subrules we practice by, three deal with settlement, the rest deal with getting to trial. The emphasis in family law should be reversed. Efforts should be directed to the timing of the settlement, education of the litigants, and early intervention and resolution.
But there remains the problem of tactics. As long as these tactics work even once in a while, they will continue to be used. We have an ethical imperative to change our tactics. We in the Advocates' Society strive to the leaders in the profession. So it is up to us. We change ourselves and then by example, others will follow. Especially if we enlist the help of the judiciary with our convincing arguments that these tactics cannot be rewarded.
Also, I have always believed that the most effective tool to implement behavioural change is the order for costs. Not because of the money, but because of the message.
Our system must promote negotiated settlements by enforcing them. It is of critical importance, where compliance with future arrangements is necessary, that parties themselves design the parameters of the regime. Those who practice in the area of family mediation have know this for years.
The law does not necessarily reward those who negotiate co-operative settlements. Recently, the Supreme Court of Canada (L.G. v. G.B., Supreme Court of Canada, SCJ. No. 72) dealt a blow to the sanctity of separation agreements by holding that, on a variation application, an agreement is only one factor - albeit an important one - but only one to be considered. Furthermore, the ability of parties to negotiate on their own without counsel is all but discouraged. It is much easier to set aside an agreement where one party was not represented. The paternalistic view is that no one who signs away a right without calling in a lawyer could possibly have understood what he or she was doing. The public infers from this that our legal system is organized to encourage the use of its own service.
In summary, we must provide the public - not just our clients, but our friends and families - with a model for the civilized, cooperative reorganization of the family unit and finances on relationship breakdown.
It is not good enough to say, "this is not my job, my job is to achieve the best result for my client, not to achieve a fair result." We are part of a system on which good, decent people rely. We are the custodians of their trust. We must make available dignified, civilized ways to have family disputes resolved. We must, in short, provide a new model for divorce. We cannot be part of the destruction of the social framework and deny responsibility for the social problems that result.
We may not leave the situation better than we found it, but at least we will not leave it worse.
Mary Lou Benotto was appointed to Ontario's General Division bench in May, 1996
- McWinney, Robert L., "The Winner-Loser Syndrome: Changing Fashions in the Determination of Child Custody," presented to the Law Society of Upper Canada, Special Lectures 1993, p. 100.
- Ministry of the Attorney General of Ontario, Program Development Branch, Court Statistics Report, 1993/1994.
- Olson, Walter K., The Litigation Explosion: What Happened When America Unleashed the Lawsuit, Truman Valley Books, 1991, pp. 2, 8.
- Peele, Stanton, The Diseasing of America, Lexington Books, Lexington, Mass., 1989.
- Psychology Today, October, 1988.
- Sykes, Charles J., A Nation of Victims: the Decay of the American Character, St. Martin's Press, New York, 1992.