Thomas Dart, Partner, Family Law

How people approach climate change and how people approach family conflict are amazingly similar. Here are some of the similarities:

Climate change Family law disputes
People deny climate change is happening At least one of the parties denies that there is a conflict which needs attention
Those people who accept that climate change is happening do not know what to do about it People in family conflict do not know how to resolve the conflict in a constructive way
Those who deny climate change belittle and denigrate those who accept that it is happening thereby creating more conflict One partner will belittle and denigrate the other thereby increasing the family conflict
Polarization occurs in climate change conflict Polarization occurs in family conflict
Polarization leads to harmful attempts to resolve the conflict such as not so peaceful demonstrations, litigation, resistance to law and order, refusal to accept authority. Polarization leads to hard-fought and intense litigation at the one end and to family violence at the other end. Often, one partner will not accept judicial rulings.
Neither party to this conflict accepts responsibility for the conflict. Neither party to this conflict accepts responsibility for the conflict.
No one tries to find a better way to resolve the conflict. The only way seems to be a “might is right” approach. Marital partners who are separating sometimes prefer to remain in conflict. They do not see the other’s point of view and believe that there perspective to the resolution is the only right approach.
Meanwhile nothing happens to save the climate. Meanwhile nothing happens to save the family from increasing damage. The conflict continues.

There has been so much written about how to constructively resolve family conflict which is unfortunately so often ignored. When it comes to family law, there are two very important pieces which must be addressed. First, is the substantive law which sets out the rights and obligations of each party. The second, and perhaps more important piece, is the process under which the conflict is to be resolved.

If people in family law conflict take the usual approach, they will retain a lawyer who will provide them with the necessary information about the law. Some lawyers believe that the only way to resolve family conflicts is to maintain control over the client file and, more importantly,  the process under which the conflict is to be resolved. They will usually try negotiations with the other side first but if that does not work, they will automatically turn to the courts. It is well-known that once court intervention is invoked, the level of conflict rises rapidly. The more allegations each party makes against each other the higher the conflict rises. Each party continues to try to prove that they are right and that they have been unjustly treated by their partner.  The lawyer seems to fail to understand that each party to a dispute always has their own perspective which is sometimes not based in fact. They do not try to find solutions for the client. More importantly, they do not inform the client of the various methods by which family conflict can be more constructively resolved.

More and more people in conflict have come to the realization that the approach most lawyers advocate, namely  the court process, is very expensive and that it cannot resolve their disputes in a very timely manner. This is through no fault of the court system. Typical of government obligations these days, courts are seriously underfunded and all the people who work in the system are overworked trying to satisfy the demand. People in family conflict are no longer hiring lawyers because they cannot afford to do so. This only causes further delays in the court system because the people in conflict often do not understand the law, know how to follow procedures, lead evidence or properly present their case to the court for a decision. Judges do their best to help but they cannot act as counsel to each of the two parties.

The family law itself is a complex body of rules and regulations which takes years to completely understand and apply to any particular conflict. The court process is governed by The Family Law Rules which themselves are not easily understood and utilized by non-lawyers.

So what can we do. Some of the suggestions which have been provided through many studies in this area and which have yet to be acted upon are summarized as follows.

First, we can try to change the climate under which family conflict operates. Instead of turning first to litigation through the courts, family law lawyers should encourage clients to turn to a good mediator and, if mediation cannot resolve the dispute, then encourage the clients to turn to arbitration. Family law lawyers need to remind people that there are also other good alternate methods for resolving family conflict such as collaborative law and structured negotiations. Lawyers should be trained in each of these processes or at the very least understand how they operate in order to give their clients better options.

Secondly, we can try to simplify family law itself. There may well be a better way to divide up property than to force people to value assets at the date of separation, at the date of the marriage and then to establish if any of the property is not shareable with the other partner. While sharing the wealth accumulated during marriage is a noble objective, the process under which that sharing operates is fraught with difficulty and expense. Trying to find a value for property is a sure method of increasing conflict.

Thirdly, when court becomes necessary, we need to appoint judges to the court who are family law specialists and we need to create a “vertical” system of case management whereby each judge is assigned a number of cases and is responsible to assist in the resolution of those cases all the way through to a trial if necessary. This means that there must be a dedicated family law court which only handles family law matters and which has an independent scheduling process, an independent administration and which lets the judges who sit in the court manage it fully. There is a model for such a court in the Ontario system. We do not have to reinvent the wheel.

Fourth, and by no means final, we need to educate the public and those who find themselves in serious family conflict that there are many resources available to them to teach them how to better resolve their conflicts and with appropriate counselling, many may in fact decide not to separate but to remain together for the betterment of all. This entails creating a climate whereby the first option for families in conflict is to find help, not litigation.

We all have a responsibility to try to save our climate – for the sake of the planet and for the sake of our families. We have an equal responsibility to address family conflict in a much better way.