When a marriage breaks up, for whatever reason, the primary interest of the state, and the law, should be to provide a process that can foster speedy healing and allow the couple to move on to a new life.
But, unfortunately, those in the throes of discord and upheaval don't usually get the professional help they really need. Instead, they end up in the offices of the legal profession, which makes its best money when conflict is escalating.
Take a recent Ontario Court of Appeal ruling that affirmed a $9 million judgment for Miriam Graham in a bitter divorce battle with her entrepreneur husband, David Debora.
The two had been in a relationship for 10 years, but sought a divorce after just one year of marriage. Their legal battle lasted 11 years. Some of the bitterness seems to have stemmed from a brief affair the wife had with a home contractor. The trial judge had concluded that Debora's difficult and protracted litigation strategy was fuelled by a "vendetta."
Obviously, this was a wealthy family, and there must have been lots of property and assets to divide, but what stuck in my mind about this rather pedestrian affair was the fact that Debora was also ordered to pay the full costs of his wife's lawyer: $2.1 million.
That's a pretty hefty legal bill for a divorce. It's not like the lawyer is scaling Mt. Everest. Often, the client is just paying for the posh office, the fancy suit and payback for having had to spend all those years in law school listening to people like me rant and rave about the corrupt aspects of law.
Assuming the firm was charging $400 to $500 an hour (the going, unfair rate for senior counsel), the legal team would have spent somewhere in the vicinity of 4,000 to 5,000 hours on this file. Spending 5,000 hours on a couple in discord would be valuable if some of that time went into healing wounds and getting over bitterness and failure, but it's often spent building walls, digging trenches and drawing battle lines.
Lots of couples are able to resolve their financial and child-rearing issues amicably, but those who are not so lucky end up in an adversarial justice system. If Debora wanted a "vendetta," he came to the right forum.
I have no problem with charging corporate entities millions of dollars for mergers, acquisitions, amalgamations and whatever else they do. I know this cost ends up being passed on to consumers, but I'm not prepared to take on capitalism right now.
But people who are suffering deserve better than legal professionals, who are famously not very adept at the mediation of interpersonal conflict because the aggravation of conflict is much better for business.
Whether we're rich or poor, our divorce rate has hovered at 42 per cent for close to two decades, and family law is not just a boutique service catering to the occasional dysfunctional couple. It has become an everyday service, and the price of unravelling a failed marriage should not be so prohibitive that the couple have to add legal fees to their list of new struggles.
Divorce proceedings should be taken out of the hands of the legal profession. Let court-appointed forensic accountants work out the financial end, and refer child custody issues to professionals trained to deal with family conflict.
The current legal treatment of family conflict fails to take into consideration the societal implications of marital breakup. No one should remain in an oppressive relationship, but the law ignores the fact that a stable public order is somehow related to fostering the stability of the family. It matters not if the family is same-sex, traditional or single-parent. It may not even matter if the family is polygamist.
The point is that no matter how much criminologists and behavioural scientists struggle to explain the causes of crime with fancy jargon and sophisticated theories, no one really questions the premise that the likelihood of becoming a career criminal is significantly lower for people who have grown up with loving parents.
Our family law may direct judges to give priority to the "best interests of the child," but this objective simply cannot be attained easily in the context of a formalized and adversarial legal process. When the current process can take years and cost thousands, or millions, the law actually fosters conditions antithetical to social peace.
It's a shame that family breakdown is dealt with virtually the same way as contractual squabbles, commercial disputes and fender-benders.
Alan Young is a professor of law at Osgoode Hall. His column appears every other week.