Going to court is often considered the last resort in family law. Resort to it should only be had after attempts at negotiation, mediation, and arbitration are undertaken. Court is expensive, and in the realm of family law, the issues presented are often extremely sensitive and involve intimate matters such as the end of relationships and best interests of children. We are not the first to suggest that the adversarial process is probably not the best way to organize family affairs.
In 2005, World Wrestling Entertainment (“WWE”) presented a storyline involving custody over a boy named Dominic. In the fight between wrestlers Rey Mysterio and Eddie Guerrero, it became known that Rey was not Dominic’s biological father and that Dominic’s real father was Guerrero. The result was that both wrestlers participated in a ladder match in which the first person to climb the ladder and capture the hanging briefcase (which held custody papers) would receive custody of the boy. In the end, Mysterio defeated Guerrero and won the custody papers.
This absurd storyline made for good television and background to an entertaining spectacle, but also satirically got right at the current problems in modern family law, particularly, the difficulties in making decisions regarding the best interests of children through litigation. The WWE fight accurately demonstrates what it’s like for parties going up against each other in a family law dispute. The adversarial system, by its nature, is a zero-sum game. There are winners and losers, and compromise is rare. In Canada, family law functions to encourage resolutions other than those based within the adversarial system.
The new amendments to the Divorce Act in Bill C-78, which received royal assent in June 2019, are attempting to remedy the zero-sum mentality of custody proceedings. The new amendments place a burden on the parties to participate in a “Family Dispute Resolution Process” before going to court, except in cases where it would be inappropriate, such as those involving family violence.
These changes reflect the goal of avoiding the courts entirely. When avoiding litigation, parties avoid the myriad costs and time spent in court. They also avoid the adversarial nature which pits them against each other. Instead, through alternative resolutions, the parties learn to communicate the interests of their children in a constructive way.
Through avoiding court and the adversarial nature that comes with it, the hope is that spouses will communicate effectively regarding the best interests of their children. Instead of facing each other down, hoping to decimate the other, parents can communicate about their children, for their children’s best interests. In doing so, they can create a plan so that as the child grows up and faces new challenges, they can be addressed by both spouses.
The nature of the adversarial system makes litigation much like a wrestling match – a fight to the end where one person is left standing. Instead of maintaining this outright hostile approach to organizing family affairs after a breakdown between spouses, the new amendments to the Divorce Act institute mandatory attempts at settlement prior to undertaking litigation. This hopes to instill acquiescence among the spouses, attempts to avoid worsening tensions that come with the zero-sum game of litigation, and tries to teach parents the importance of communication for the best interests of their children.