Supreme Court of Canada and Family Law Roulette

If there wasn't enough reason to avoid recourse to the judicial system already, on December 21, 2011, the Supreme Court of Canada gave us yet another example of why the judicial system has become so difficult to predict.

There was a time.. oh it seems like just yesterday, when the Supreme Court of Canada treated adults as, well, adults.. and respected agreements entered into between them like any other contract, holding in a series of decisions loosely referred to as the "trilogy" (Pelech, Caron, Richardson) that where parties have entered into an agreement regarding support, particularly where that agreement provided an "end date", the Courts had to respect the rights of individuals to establish, by agreement, the terms relating to their divorce.

Then, in 2003, the Supreme Court did an about face, in the case of Miglin, and said, well, those agreements had to be given significant weight, but did not oust the jurisdiction of the Courts to vary those agreements where the agreement was not "in substantial compliance" with the overall objectives of the Divorce Act.

What does "substantial compliance" mean?  Well, mostly, what the judge things is fair, taking into account the considerations set out in the Divorce Act.  And if you ask 50 judges, you will get most certainly, 50 different standards of fairness, as they apply their legal and life experience to vague and ambiguous notions established in the divorce act of "economic advantage or disadvantage" resulting form the marriage, of "economic hardship" resulting from the marriage breakdown.. and other facts set out in section 17. 

The Court did, however, state that agreements properly entered into should be given deference by the Courts and should be interfered with only in rare circumstances.

Now, with the latest decision of the Supreme Court of Canada in L.M.P. v. L.S., the Courts have determined that an agreement is just one factor to take into consideration, given no more weight than any other factor by the Court.

In other words, well, it's a free-for-all.

And here's the problem with uncertainty.  While parties are free to seek to obtain an Order which may be at odds with their agreement, there is a cost.

Quite recently, I had a client who was subject to a support review after 4 years of divorce.  Her husband, in my opinion, was unreasonable, and after a 20 year marriage and two children, felt that 4 years was enough, and sought to terminate support.  At the end of the day, my client was successful, and had her support extended for 8 more years.  She was awarded costs of the application of $2,000.00.  The problem?  It took over one year to complete the review, and her legal fees were over five times that amount.

While many people will laud the Supreme Court of Canada for it's steady march towards a system of "palm tree justice" where each case will rise or fall on their facts, the uncertainty that such a decision creates is not without a significant and real cost.

"Fact" based justice is extremely troubling, particularly in family law, where parties often see their respective positions as unassailable.  And then find that even where they succeed, that "success" comes at a high price, both in terms of financial cost and time and stress related to litigation.

And this comes from the perspective of the "successful" litigant.

Imagine the perspective of the husband in my case.

Often, when parties come to me for advice respective whether or not to litigate, I provide them with a reasoned opinion taking into account the leading decisions of our Supreme Court of Canada and our Court of Appeal, together with a general perspective of the current attitude being presented by our lower courts.

And then I tell them, that, notwithstanding my brilliance, at the end of the day, it's a game of roulette.  Only in very rare cases do I suggest their odds are better than 70/30.

And then I say, would you, in your financial circumstances, be willing to make a $10,000.00 bet on a roulette wheel, if you knew that there was a 30% chance you would lose it all?

The Supreme Court of Canada has just increased the odds against the players being able to predict their outcomes.

And that's where negotiated resolution comes in.

Mediation.

Collaborative divorce.

Keeping control over outcomes in YOUR hands.

It's your choice..   are you feeling lucky?