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ZappBranniganAgain

How Would You Improve the Family Law System?

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I've noticed a few threads in the last couple of months that have discussed the practice of family law and the problems that practitioners face. The general consensus, both here and - I think - in the profession seems to be that family law is kind of a mess. Difficult clients (an understatement), endless litigation, lack of access to justice, poor treatment of children, and many other problems make family law a morass. As a result, lawyers tend to not want to enter the area, and many who are practicing in the area tend to leave it after a while. Moreover, people's concerns and legitimate issues often go unresolved.

Family disputes are, obviously, anything but new. What is new is the type of litigation we have now, where partners split up and descend into an interminable legal conflict with the court as the battleground and - at least in my experience - their children as the first casualties. The individuals themselves often spend a fortune until lawyers are abandoned and they attempt to self-rep. Rather than resolving issues, the litigation seems to generate new issues. Once we have an order for summer parenting time, what day does Timmy come home? Should there be a police attendance at the drop off since last time the dad punched the mom in the face? Should there be an order that Timmy can't be allowed to sleep with the dog because of his allergies?

The main problems that I've experienced are:

1. Impossible, irrational clients and opposing parties. These people are not operating on a logical basis the way a businessperson suing over breach of contract might be. In many ways, they don't want a legal solution. Rather, they want someone to fix their lives, which no lawyer or judge can ever do. They also want to use the court as a way to exert control over other people in their lives, which the court naturally resists.

2. The litigation never ends. Even after years of applications and a full trial, then it's time to appeal. I've inherited clients that have been litigating for over a decade, and to be totally frank, there were no rational issues that I could see. They were litigating over a relationship that no one but them could see, cloaked in half-legal claims.

3. The kids get the shaft. The idea of modern family law statutes with regards to children is to find the "best interests of the child". You hear this phrase over and over, and to be sure that definitely should be the goal. The problem is that, in an adversarial system, both parents always say that they know what is in their kids' "best interests", even when they clearly don't. I don't think that the adversarial court system really finds the best interests of the child, just which parent can more compellingly prove their version of that concept. 

4. This will sound mean, but I'll say it anyway: self-reps. I know why people self-rep and I definitely am not criticizing them for it. What I am saying is that their presence is disruptive and inefficient compared to (most) lawyers. Having them in the courtroom alone results in time wasted explaining the distinction between "custody" and "guardianship", or why their affidavit was rejected, or other issues that eat up time for no real benefit. That's not the self-rep's fault, but it is a problem for the system.

I'm not trying to complain about family law practice. I guess I just wish that there was a better way to make an efficient but fair judgement on the basic issues of child support, spousal support, asset division, and who gets what time with the child. I'm not a sentimental person, but even I get kind of sad when I think about all the broken families that pass through my office or my colleagues' offices and wonder if there was something I, or we as lawyers, should have done or not done to make things better.

Perhaps family law should be taken out of the adversarial system and forced into a summary arbitration system. People submit affidavits and financial statements, a judgement is made, and that's the end of it. That doesn't allow people to explain the fine print of their relationship, but maybe that's a good thing? I suppose I just think that the way the court perceives litigation (competitive, antagonistic) works for resolving lots of disputes, but is antithetical to the cohesive unit we think of as a "family". It's more like "not-a-family-for-much-longer" law. 

And to be sure, lots of people divorce or split up without getting involved in the courts at all. So maybe family law is turning into a forum for high-conflict people, who will never compromise, to air their grievances, and if it's not helping them then maybe it just doesn't need to exist in its current form. I've heard the justification that family law is meant to prevent people from taking matters into their own hands and deter family violence, but in my (limited) experience, family law does nothing of the kind. High-conflict people are high-conflict, and if they're going to drive over to the house and smash the windows, there's nothing except a police takedown that will stop them. 

I don't want to seem like I am being arrogant here. I am not a senior family law practitioner. I do not make any claim to have a profound knowledge of family law. This post is purely based on my own experiences and discussions with other (more experienced) family lawyers.

Thoughts? Do you think the family law system can be improved or is it as good as it's going to get? What would you change about it?

Edited by ZappBranniganAgain
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I'm a tax litigator. No family law experience other than I took family law in law school. What I can say is this as a litigator. Litigation is the worst possible process I can think of for two spouses to resolve their family issues on breakdown. A coin toss would be better. 

Mandatory, binding arbitration would be even better. 

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Wouldn't mandatory mediation also be a good first step? It would help air out some grievances and "calm things down" without subjecting the parties to a process they may feel unfairly binds them?

 

Also: cool thread!

Edited by pzabbythesecond

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I think the problem lies with the almost limitless motions a party can bring to clog up the litigation, where a final determination of the core issues on the merits may take years. This is a problem attributable to civil litigation in general.

I practice criminal defence, and while there are motions, it doesn't completely paralyse the litigation process. There is a period of negotiation with the Crown and if you don't agree to a resolution then you set it down for trial. That's it. Now maybe it is easier to streamline that process in criminal because it's very much a zero sum game - either you're pleading guilty or you're not. Also the Crown has a very different role than your traditional adversarial litigation process.

At the same time, I do believe that if you get a matter to a judge and time limit the litigation process, things happen and the matter moves along. Get rid of most motions. Have a mandatory mediation stage and then a time limited period to set the matter down for trial.

Edited by thegoodlaw
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I work with legal aid in my jursidiction and feel like the whole process could be streamlined in most cases. Mandatory mediation and an administrative process for collecting child support would be my main two suggestions at this point. Child support should not require lawyers and courts in most cases. It should be an administrative process where the administrative body has access to tax records and can enforce.  It's ridiculous how much money goes into getting child support orders, enforcing those orders and then how low the rate of collection is in the end. This actually woke me up in the middle of the night last night. I have soooo many clients who are single mothers raising one or more children with zero financial assistance from the father(s). Makes me so angry and I don't think the current system is working. 

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I have been practicing family law for a few years, first in Toronto, now in a smaller city. I agree with the points OP has raised.

I would like to add the following about our role and practice as family law lawyers:

 

1) Family lawyers motivated by their wallets:

It is unfortunate that there are lawyers out there who profit from families' misery. Some lawyers act like "hired guns" and will write anything their clients tell them (no matter how ridiculous or irrelevant).

They fan the flames of conflict. They bring motion after motion for minor infractions. They goad the already angry spouse to air his or her emotions in court. They only tell the clients what they want to hear. They write aggressive letters 24/7 which agitates opposing side beyond reason.... The list goes on.

I have inherited numerous files which caused me to shake my head at the strategies previous counsel employed. I understand that with respect to legal strategies, counsel are entitled to tremendous deference and clients do not always tell us the whole truth - some strategies are recipes for litigation.

Worst of all, these lawyers will dump their clients after they are out of money (A pre-signed Form 4 Change in Representation).

The entire Family Law Rules are premised on the principle of encouraging parties to settle.

Family law is about helping families restructure, protecting the children, and re-establishing stability. Part of the role of a family lawyer is try to take the emotion out of a separation, to act as a filter to discuss legal issues, and to manage client expectations.

More importantly, lawyers must recognize that no matter what happens, the parties will forever remain the parents of the children.  Family law is ultimately about human relationships. People have memories of horrific events. Litigation will undercut the post-separation relationship between the parties to the detriment of the children.

I make it very clear and blunt to my client from the outset that:

"No one is going to walk away with everything."

"No one is winning."

"Would you like a stranger (e.g. judge or lawyers) to make important decisions for the future of your children?"

"Don't spend money on me, spend it on your children's education and your own pension."

"Would you like to go on a vacation with the children yourself or would you want to send me on vacation?"

"You need to separate your spouse's lawyer from your spouse." (Sometimes it is an angry pitbull of a lawyer on the other side trying to agitate my client). Vice versa, I tell clients not to direct their anger at opposing counsel who may be trying very hard to settle the case with me.

"You can choose to pay [insert outrageous sum of legal fees here] to drag this to court, or consider taking a reasonable offer in which no one would get everything they want, but it is one that spares the children."

"Domestic violence and litigation are emotionally and psychologically destructive for the children."

"Your children love both of you and they still probably hope that the marriage can be saved. Don' t make this anymore painful than it already is."

 

2) Lawyers who have not a clue what they are doing:

You think self-reps are horrible? I have seen horribly drafted Applications and Answers which later require an amendment because a lawyer forgot to make certain claims, which can add weeks of delay into the fray. I have had opposing counsel screaming at me in court or interrupting my submissions. I have had lawyers who think that withholding financial disclosure is a legitimate litigation tactic (Note well, it definitely is not).

Lawyers who make outlandish claims in court about something the court has no jurisdiction to grant.

Lawyers who do not respond to Offers to Settle, miss filing deadlines, miss court dates, show up late to court dates, not show up at all, send articling students who have no clue what the file is about --> to take the blame, take vacations during the most critical time of the file, show up without client instructions, making deals behind their client's back, lying about opposing counsel's position, overbilling their clients, withholding information from their client, misrepresenting their client's position.... so on and so forth...

I take the position that we are not "hired guns," we are here to help families move on and protect their children from the wrath of otherwise intelligent and wise adults who act like children due to emotions.

 

3) [Client Management] Lawyers must recognize that for many families, this is the first time they are going through a separation when  the known world is crumbling around them.

People do not enter relationships or have children with a view that one day everything will fall apart.

A skilled lawyer can talk angry clients back down and recognize that they are not angry at you; they are angry at the system, the perceived injustice they experienced, at themselves...

I have had clients apologize to me in a letter after I gave them the "calming talk." They tend to take more reasonable positions afterwards.

 

4) Try to be reasonable with self-reps on the other side. 

People are immediately apprehensive when they receive a letter from a lawyer, a divorce letter at that, especially out of the blue.

Of course, people read and interpret emails and letters differently from what the writer wanted to communicate.

I put in extra effort to make sure that my letters are not unnecessarily aggressive (even when I am demanding a response, I provide a reason why I am acting this way).

People are more willing to come to the table to talk rationally when they are not being threatened, coerced, bullied, or blamed - when they see the other lawyer as a person who is trying to help the family move on and not as a bully.

 

5) "Without Prejudice" Telephone Calls with opposing counsel can save a lot of money and time

Sometimes, a "without prejudice" call can dissolve a hostile situation quickly or convey a lot of information under 10 minutes. A barrier to communication is what gets many files in court because of the emotions and the perceived ill-intentions.

If at the end of the call, opposing counsel is happy with the progress, then we can commit discussion in writing.

Emails cost money. Letters cost money. Sometimes neither can get the file moving as quickly as it should.

A lot of my files settle because I am having telephone conferences often.

Of course, when I get an angry letter from opposing counsel, I make a call.

"Okay, I see either you or your client is angry; I am listening."

This can allow opposing counsel to air his or her grievance with me or my client. Most of the time it's due to a miscommunication or misunderstanding.

It is also a power move to tell an aggressive opposing counsel that I am not intimidated by threats of costs and involvement of law society or LAWPRO.

 

My overall point is, family law file requires delicate and measured handling. A firm approach is needed when clients do not listen or wants everything on Earth.

How lawyers practice directly impacts how quickly and inexpensively a family can move on. A lot of the delay in court, imho, is caused by lawyers who could've made more effort to resolve files out of court through calls and alternative dispute resolution. A lot of mistakes in court can be avoided if lawyers actively learn about recent developments in family law and listen to judges who offer sage advice.

Unfortunately clients often pay the grave price for the mistakes of lawyers.

 

Sorry, this is an issue that bothers me day in and day out. /End Rant.

Edited by Aureliuse
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On 10/31/2019 at 11:50 PM, Aureliuse said:

2) Lawyers who have not a clue what they are doing:

You think self-reps are horrible? I have seen horribly drafted Applications and Answers which later require an amendment because a lawyer forgot to make certain claims, which can add weeks of delay into the fray. I have had opposing counsel screaming at me in court or interrupting my submissions. I have had lawyers who think that withholding financial disclosure is a legitimate litigation tactic (Note well, it definitely is not).

Lawyers who make outlandish claims in court about something the court has no jurisdiction to grant.

Lawyers who do not respond to Offers to Settle, miss filing deadlines, miss court dates, show up late to court dates, not show up at all, send articling students who have no clue what the file is about --> to take the blame, take vacations during the most critical time of the file, show up without client instructions, making deals behind their client's back, lying about opposing counsel's position, overbilling their clients, withholding information from their client, misrepresenting their client's position.... so on and so forth...

I take the position that we are not "hired guns," we are here to help families move on and protect their children from the wrath of otherwise intelligent and wise adults who act like children due to emotions.

How much of this do you think is attributable to articling students not being allowed to appear in court for any family law matters (at least in Ontario)? I don't actually have any numbers, but I'd assume this would lead to fewer articling positions for family law and probably some young lawyers going into it having only done a little bit of family law in their articles.

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On 11/6/2019 at 10:10 PM, Thinking said:

How much of this do you think is attributable to articling students not being allowed to appear in court for any family law matters (at least in Ontario)? I don't actually have any numbers, but I'd assume this would lead to fewer articling positions for family law and probably some young lawyers going into it having only done a little bit of family law in their articles.

Many firms and organizations offer students opportunities to prepare, observe, and take notes during motions and trials. A lot of learning happen here and in debriefing sessions with senior associates.

What is critically absent in family law (perhaps in other areas of law as well) is mentoring. A student can only learn so much during articling. Most learning occurs when handling client  files, making submissions in court, or correcting mistakes (hopefully without a LAWPRO claim attached to it).

Heavy discounts on continuing professional education programs for 1-3 year calls would assist many new to the field learn about how to practice.

Some junior counsel are incredibly bright and competent. Some have excellent mentors while others put in tremendous effort to become competent on their own.

 

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Ok. So I'm getting though the family law section of the bar, and (presuming I understood it), it seems that adultery isn't a consideration when it comes to spousal support. My immediate reaction was.. surprised. But I'm sure there's been a lot of doctrinal development on this.

Can someone shed light on doctrinal reasons for this, or point me to good sources on it? I never took the class and I'm not sure where the best place is to look.

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10 hours ago, pzabbythesecond said:

Ok. So I'm getting though the family law section of the bar, and (presuming I understood it), it seems that adultery isn't a consideration when it comes to spousal support. My immediate reaction was.. surprised. But I'm sure there's been a lot of doctrinal development on this.

Can someone shed light on doctrinal reasons for this, or point me to good sources on it? I never took the class and I'm not sure where the best place is to look.

There are three sources of entitlement to spousal support.  Contractual (mostly pre-nupitals and separation agreements), non-compensatory (essentially maintenance of standard of living in both households), and compensatory (essentially compensation for the reduction in earning capacity as a result of the spousal relationship and it's breakdown).  There's considerable comment in Moge ([1992] 3 SCR 813) and Bracklow ([1999] 1 SCR 420).

Generally there is no connection between adultery and any of these sources of entitlement to support.  It's irrelevant.

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12 minutes ago, swe said:

There are three sources of entitlement to spousal support.  Contractual (mostly pre-nupitals and separation agreements), non-compensatory (essentially maintenance of standard of living in both households), and compensatory (essentially compensation for the reduction in earning capacity as a result of the spousal relationship and it's breakdown).  There's considerable comment in Moge ([1992] 3 SCR 813) and Bracklow ([1999] 1 SCR 420).

Generally there is no connection between adultery and any of these sources of entitlement to support.  It's irrelevant.

Thanks for the cases. 

I realize it's irrelevant. I'm asking what the doctrinal reasons for and against relevancy/irrelevancy are :)

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11 hours ago, pzabbythesecond said:

Ok. So I'm getting though the family law section of the bar, and (presuming I understood it), it seems that adultery isn't a consideration when it comes to spousal support. My immediate reaction was.. surprised. But I'm sure there's been a lot of doctrinal development on this.

Can someone shed light on doctrinal reasons for this, or point me to good sources on it? I never took the class and I'm not sure where the best place is to look.

I don't practice family law so you can take my comments for what they are worth. 

I am surprised that your reaction was surprise. Hasn't Canada had a "no fault" divorce for quite some time? Like, since before you were born? 

It actually surprises me when I speak with friends who live in the US and they talk about adultery being grounds for divorce and the divorce settlement being affected by who is at fault. 

A totally non-legal opinion, but I think that Canada has it right with no fault divorce. Marriages and relationships are messy and complicated. How anyone can assign blame for their breakdown is beyond me. This opinion is formed having been in a relationship with the same partner for 35 years. Obviously I will add the provisio that this doe not apply to situations of domestic abuse or violence.  

 

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Posted (edited)
12 minutes ago, OWH said:

I don't practice family law so you can take my comments for what they are worth. 

I am surprised that your reaction was surprise. Hasn't Canada had a "no fault" divorce for quite some time? Like, since before you were born? 

It actually surprises me when I speak with friends who live in the US and they talk about adultery being grounds for divorce and the divorce settlement being affected by who is at fault. 

A totally non-legal opinion, but I think that Canada has it right with no fault divorce. Marriages and relationships are messy and complicated. How anyone can assign blame for their breakdown is beyond me. This opinion is formed having been in a relationship with the same partner for 35 years. Obviously I will add the provisio that this doe not apply to situations of domestic abuse or violence.  

 

I'm hesitant to comment because I haven't taken family, don't practice family, and haven't had time to read up on doctrine.

My gut reaction was a surprise simply because adultery in a modern day marriage (assuming one free of violence and fear) is a choice. There is nothing stopping the unhappy partner from saying so, asking for a separation, and then stepping out of the marital bond. Therefore my immediate reaction was surprised because adultery, which to me is a renouncement of the marriage and carries some moral blame worthiness, would seem to have conceptual implications for the eventual dissolution of the marriage.

In short, I view the marriage as a corpus which includes financial rights flowing from the bond for both partners. I view adultery as a voluntary renouncing of that bond by one, and consequently it would make sense that any such rights flowing from said corpus would also be renounced. At least in part.

Again, I really really don't know enough. This is just my immediate "hunch" take.

Edit to add: I firmly don't believe adultery should have any bearing on child support, since that is intended for the benefit and interests of the child, who is an unfortunate innocent third party to such breakdowns.

Edited by pzabbythesecond

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7 minutes ago, pzabbythesecond said:

I'm hesitant to comment because I haven't taken family, don't practice family, and haven't had time to read up on doctrine.

My gut reaction was a surprise simply because adultery in a modern day marriage (assuming one free of violence and fear) is a choice. There is nothing stopping the unhappy partner from saying so, asking for a separation, and then stepping out of the marital bond. Therefore my immediate reaction was surprised because adultery, which to me is a renouncement of the marriage and carries some moral blame worthiness, would seem to have conceptual implications for the eventual dissolution of the marriage.

In short, I view the marriage as a corpus which includes financial rights flowing from the bond for both partners. I view adultery as a voluntary renouncing of that bond by one, and consequently it would make sense that any such rights flowing from said corpus would also be renounced. At least in part.

Again, I really really don't know enough. This is just my immediate "hunch" take.

Edit to add: I firmly don't believe adultery should have any bearing on child support, since that is intended for the benefit and interests of the child, who is an unfortunate innocent third party to such breakdowns.

I sincerely hope I don't come off sounding like a dick, because that is not at all my intention. 

Your view is very logical. The problem is that marriages and relationships are not logical, they are emotional. So yes in a perfect world all partners would be open, honest and be able to share their feelings without reservation.  I should be able to go to my spouse and say "you are not meeting my needs, emotionally, spiritually or physically and I want a separation". However, we don't live in a perfect world. Each one of us is flawed. The law has chosen to recognize this fact and allow for a system of no fault divorce. 

I don't think this is necessarily a legal question. There are many instances where parliament or the legislature decides that for public policy reasons the outcome should be different than what it would be if we followed things to their logical legal conclusion. Forgive the over simplification, but in Ontario we have a somewhat tortless or no fault auto insurance scheme and we have caps on the amount of damage awards. Every person that negligently drives an automobile and gets into an accident made a conscious choice to drive in that manner. However, the legislature has decided in its infinite wisdom that the public policy imperative of lower more affordable insurance premiums outweighs an inured party being fully compensated for their damages. 

In the case of adultery, parliament has decided that the public policy imperative outweighs the aggrieved party being compensated for the adulterous party's breach of the marriage contract. Divorce is already messy and complicated. Do we want to further add to that by having the courts dissect what went wrong in a marriage and what portion of blame each party should shoulder? 
 

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2 minutes ago, OWH said:

I sincerely hope I don't come off sounding like a dick, because that is not at all my intention. 

Your view is very logical. The problem is that marriages and relationships are not logical, they are emotional. So yes in a perfect world all partners would be open, honest and be able to share their feelings without reservation.  I should be able to go to my spouse and say "you are not meeting my needs, emotionally, spiritually or physically and I want a separation". However, we don't live in a perfect world. Each one of us is flawed. The law has chosen to recognize this fact and allow for a system of no fault divorce. 

I don't think this is necessarily a legal question. There are many instances where parliament or the legislature decides that for public policy reasons the outcome should be different than what it would be if we followed things to their logical legal conclusion. Forgive the over simplification, but in Ontario we have a somewhat tortless or no fault auto insurance scheme and we have caps on the amount of damage awards. Every person that negligently drives an automobile and gets into an accident made a conscious choice to drive in that manner. However, the legislature has decided in its infinite wisdom that the public policy imperative of lower more affordable insurance premiums outweighs an inured party being fully compensated for their damages. 

In the case of adultery, parliament has decided that the public policy imperative outweighs the aggrieved party being compensated for the adulterous party's breach of the marriage contract. Divorce is already messy and complicated. Do we want to further add to that by having the courts dissect what went wrong in a marriage and what portion of blame each party should shoulder? 
 

Very valid points. I'm not disputing they're valid. I was just looking for doctrinal backing of the current system!

Personally, I think if evidence of adultery can be proven or admitted, that it should weigh on spousal support to some extent. Obviously I don't know how busy or complicated family courts and cases can be, but I'm not sure this is so difficult that it merits a blanket no fault determination.

It just seems to be a bit too "coddling" to me to think adults can't take the step of telling their significant other they're unhappy and want a break before they step out of the marriage.

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I would assume that the policy reasons for making divorce a no-fault event are as simple as: if who was more at fault was an important question in the normal course of things then many or most family law proceedings would become wholly intractable. 

Being said, IIRC from my family law class, there are some authorities which show that fault can creep in through the backdoor, sort of, when it comes to support. I seem to remember a fact scenario where the wife supported husband for two decades while he want through a huge career change and extensive professional education and then he abandoned her at the end of it. I don't remember how the arguments cut but it was something like her inability to be self-sufficient was directly related to the emotional devastation he caused her and therefore he owed her massive support. So the bad conduct was not relevant but the court has said that in extreme cases the results of the bad conduct can be relevant?

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4 minutes ago, pzabbythesecond said:

Very valid points. I'm not disputing they're valid. I was just looking for doctrinal backing of the current system!

Personally, I think if evidence of adultery can be proven or admitted, that it should weigh on spousal support to some extent. Obviously I don't know how busy or complicated family courts and cases can be, but I'm not sure this is so difficult that it merits a blanket no fault determination.

It just seems to be a bit too "coddling" to me to think adults can't take the step of telling their significant other they're unhappy and want a break before they step out of the marriage.

Ok, this is where the me being a dick part come in. ;) 

Hopefully when you are older and more experienced you will come to see that the world is not so back and white, but instead there are many shades of grey. 

I thought that I had given you the doctrinal backing of the present system. It's just not the cold hard doctrine you align with. Sparing the parties the acrimony. anguish and expense by putting in place a no fault system is a doctrine. You may not agree with it but it is the doctrine that parliament has chosen. 

What you really appear to be saying is "I want a doctrine that fits with my world view" 

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1 minute ago, OWH said:

Ok, this is where the me being a dick part come in. ;) 

Hopefully when you are older and more experienced you will come to see that the world is not so back and white, but instead there are many shades of grey. 

I thought that I had given you the doctrinal backing of the present system. It's just not the cold hard doctrine you align with. Sparing the parties the acrimony. anguish and expense by putting in place a no fault system is a doctrine. You may not agree with it but it is the doctrine that parliament has chosen. 

What you really appear to be saying is "I want a doctrine that fits with my world view" 

Definitely not. I acknowledge you gave doctrine. I was clarifying that my initial post was asking for doctrine, and then clarified my view as I would prefer it, and why. That's all.

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3 minutes ago, OWH said:

Hopefully when you are older and more experienced you will come to see that the world is not so back and white, but instead there are many shades of grey. 

Also yeah, you can talk down to me all you want. But adultery as a morally deficient behavior has centuries of thought into it, including modern day philosophers. My view isn't black and white just because it doesn't align with yours.

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9 minutes ago, pzabbythesecond said:

Very valid points. I'm not disputing they're valid. I was just looking for doctrinal backing of the current system!

Personally, I think if evidence of adultery can be proven or admitted, that it should weigh on spousal support to some extent. Obviously I don't know how busy or complicated family courts and cases can be, but I'm not sure this is so difficult that it merits a blanket no fault determination.

It just seems to be a bit too "coddling" to me to think adults can't take the step of telling their significant other they're unhappy and want a break before they step out of the marriage.

I think you're confusing grounds for divorce with grounds for support. Adultery still establishes the breakdown of a marriage under section 8(2)(b)(i) of the Divorce Act. My understanding (limited family experience here) is that "lived separate and apart for a year" is more popular because it's easier to prove.

Spousal support, as others have noted, is generally contractual, compensatory, or non-compensatory. Read Moge. If you attached a requirement of any kind of virtue testing to spousal support (ie, "if you can prove your wife was an adultress, you'll pay her less"), it would make it more difficult for vulnerable spouses to receive support and increase the number of high conflict family matters, both of which are bad.

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