National Post

Wednesday, November 25, 1998

A move to entrench life-long family obligations promises more emotional battles

The swing of a fiery pendulum

Luiza Chwialkowska
National Post

Husbands and wives are pushing courts and lawmakers to clarify their rights and responsibilities when marriages end, and those among them who see marriage as a casual contract may not like the result.

A recent Supreme Court of Canada ruling interpreted marriage as a legally binding, long-term financial and social commitment. Two more controversial cases before the court look as if they may end in the same result. Yet another case, this one involving same-sex couples, may transfer similar demands to common-law relationships. And a joint parliamentary committee on custody and access issues is expected to recommend a strengthening of fathers' ties to their children after marriage ends.

The end result of all this is that both formal marriage, and common-law relationships, are being moved back toward the traditional religious ideas about indissoluble ties of matrimony, and away from the more casual attitudes toward divorce that many Canadians have adopted in recent years. "There are a lot of family law issues that are beginning to come to the Supreme Court because people who have lives to live want to know what the rules are," says family law expert Joel Miller.

And the rules resemble traditional attitudes toward marriage, say divorce lawyers.

"Are the judges bringing in values from another era? I think they are, to some extent," says James McLeod, a law professor at the University of Western Ontario. "They're unwilling to accept that relationships are more transient today."

In a recent ruling, the Supreme Court found that a stepfather was liable for financial support to a stepson, even after he had divorced his mother.

In Bracklow v. Bracklow, a case now before the Supreme Court, a woman who fell ill after her divorce is suing her former husband for long-term financial support. She claims that he should continue to support her because they vowed to support each other in sickness and in health.

"People take relationships less formally than do the courts," says Mr. McLeod. "These are developments by judges interpreting the legislation. It's an ad hoc process. So it's their value system being superimposed on it."'

Meanwhile, the joint Senate-Commons committee is preparing to submit its report sometime next month, and is expected to recommend increased custody rights for fathers.

"There will be some change in the way custody and access is awarded, and a change with the presumption of what rights are," says Mr. McLeod.

"You've got the men's groups, whether you agree with them or not, saying, 'Wait a minute. We're paying more money, and we've been given a lesser role with our children.' The custodial parent in many cases is allowed to move with the child, interfere with access rights. So you're getting a natural knee-jerk reaction.

"They will institutionalize, I think, the right to speak to teachers, the right to speak to doctors and other people about your child," says Mr. McLeod. It's all part of the evolution of the law that has been driven by changing attitudes toward the place of women and men in society.

"Most family law practitioners have seen a number of swings of the pendulum in family law as, over the last 15 to 20 years, the courts have tried to move into a much more sensible arrangement," says Mr. Miller.

"In the earlier days there was a severe disadvantage to the wives and often to the children. So in trying to redress what was an unjust situation to begin with, there was a lot of motion in one direction. Now there is a reaction to that." Every time the pendulum has swung, it has strengthened the ties that bind former spouses long after divorce.

"In the mid to late '80s, the courts were using doctrines of causal connection to cut off or question a woman's right to support if she hadn't been economically disadvantaged by a divorce," says Hunter Phillips, a family lawyer in Ottawa. That meant a spouse usually got support only for a short time after a divorce.

"Now time-limited orders for spousal support are almost ceasing to exist. We're certainly at a point now where the norm after any marriage is obligation to pay support where there is income disparity between the husband and, the wife, particularly if she had interrupted her career to have children."

The tug-of-war is resulting in stronger ties between former spouses.

The courts are reaffirming the notion of life-long parental rights and responsibilities of both men and women. Some say they are going too far.

Mr. McLeod is disturbed by the Supreme Court ruling in Chartier v. Chartier, the stepparent case (see related story). "The Manitoba court said, these things come and go. A lot of travellers go through a family life. And if you end your relationship with a child, then support should end with it. The Supreme Court is saying no, a short term relationship can fund a long-term obligation," says Mr. McLeod.

"I think it's wrong," says Mr. McLeod. "But they're going to say that they're focusing on the needs of the child." The religious community, however, is heartened by the renewed focus on the importance of family ties.

Lawyer Carey Linde

"The 'traditional' notion of marriage was based on a covenant between two people," says Bruce Clemenger, a director of the Evangelical Fellowship of Canada.

"I would be encouraged if our contemporary society is understanding that marriage is a covenant, not just a contract. A covenant is not two individuals contracted together to exchange services as long as it suits their individual self-interest. A covenant involves self-sacrifice and compromise."

"If there is a move by the courts to extend and clarify these obligations, then the government should also have another look at the issues or divorce and how easy it is to obtain:' says Mr.Clemenger.

The Bracklow case will be a challenge to the legal enforceability of traditional vows.

"They're being asked to examine those traditional commitments," says Mr. McLeod. "If they agree with Mrs. Bracklow they will say that the traditional commitments should be vigorously implied. I think they're going to say he supports her."

"People who have been married longer or have traditional marriages may well see that there should be a strong long term financial commitment after marriage. People who see satisfactory social relationships as something that can be sequential will be very troubled by Mrs. Bracklow's position because you could have somebody who's had three marriages with three life long commitments," says Mr.Miller.

Senator Anne Cools and MP Roger Gallaway are on the parliamentary committee that is expected to recommend a strengthening of fathers' ties to their children after marriage ends.

As mens' obligations have been increased over the past 10-15 years, and stand to be further extended by cases like Bracklow, they have been met with demands for more rights.

"There are a lot of access parents who feel there has been a lot of focus on the economic dislocation and not enough attention to the social and emotional aspect of the parent-child relationship," says Mr.Miller. "Fathers are saying, I want to attend all the soccer practices, not just the championship game."

"It is my experience that there is a slow but definite trend for the court to look at the expectations of these parents. But there is a faster rate of increase of people asking for that access," says Mr.Miller.

Vancouver-based father's rights lawyer Carey Linde believes the coming years will see a push for closer ties between divorce father's and their children.

"It's almost as if the last 20 years were a fight to get women into the workplace, and the next 20 years are going to be a fight to get men into the home parenting," he says. Mr. Linde would like to see shared custody, not single custody, as the default arrangement reached by courts.

But women's groups are opposed.

In her submission to the committee, Susan Boyd, a law professor at the University of British Columbia and a member of the National Association of Women and the Law, rejected the idea of shared custody.

"When adult relationships break down, it is unrealistic to expect that unequal parenting arrangements can be transformed into equal ones. In particular, it is unrealistic to build into legislative provisions assumptions that all parents can or will share parenting responsibilities and rights."

"(Parenting) arrangements will rarely equal or symmetrical, and typically the mother will retain greater responsibility," she wrote.

As courts extend the consequences of marriage are strengthened, another legal movement stands to transfer them to common law live-in relationships.

In a case now before the Supreme Court, an Ontario woman is seeking financial support from her former lesbian lover with whom she lived for more than twelve years. If she succeeds, she will put the members of same-sex common law relationships on the same legal footing as heterosexual spouses.

"Same-sex issues are moving the courts and legislatures to breaking down the line between marriage and common-law relationships," says Mr.Miller.

"Marriage is going to become irrelevant," says Mr. McLeod. "You're going to see the merging of private relationships into social policies. You're moving to a point where you're looking at the nature of the relationship. The courts are going to look at the substance of the relationship, the pattern of dependency, the sharing of resources."

"It may well be that the only distinction left will be the Bracklow distinctions," adds Mr. Miller. "That because you got married you have a longer financial commitment than if you didn't get married."

Will the changing rules add gravitas to the institution of marriage, and of common-law relationships? Might it discourage couples from taking their vows?

"I don't know that there are too many people who study the law before getting married," Mr.Miller says.

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