March 19, 2018 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
This article out of Canada rather breathlessly breaks the news that divorce can be costly (Hants Journal, 3/13/18). To that I can add my own breaking news: most people already know that. That’s the main reason why over 95% of divorce cases are agreed to by the separating spouses. They can’t afford and, in any case don’t need, lawyers. So they figure out acceptable post-divorce arrangements, write them up in the format desired by the particular court and hope the judge signs off. Most judges are all too happy to have an agreement in lieu of conflict.
In the overwhelming majority of cases, there’s simply no reason to spend more than a few hundred dollars to get divorced.
Still, some people do and that leads the linked-to article into its dark forest of a few not very interesting facts and other misleading ones.
So we find the pseudonymously identified Samantha Knowles bemoaning her fate as a divorced mother.
Even though Samantha Knowles has a good-paying job, she says she now avoids calls from bill collectors because it’s more than she can handle…
“I’m ready to be bankrupt,” said Knowles. “There are so many bills outstanding that I don’t answer any phone numbers I don’t know.
“I can only put food on the table and take care of my immediate bills and my kids.”
Although it’s been years already since her divorce, Knowles is still making monthly payments of hundreds of dollars in legal costs. The divorce itself initially cost her and her ex-husband about $4,500 each. Legal fees to regain shared custody of her children in proceedings since then have burdened her with another $7,000 of debt.
The total in legal costs for that divorce so far is roughly $16,000.
And then, there’s the child support. Since Knowles’ ex-husband is out of work and has shared custody of the children, she pays him almost $1,000 per month in child support.
Hmm, that raises certain questions, the principal one being “Why didn’t she and her ex simply agree on the shared parenting arrangement they now, after $16,000 in legal fees and court costs, have anyway?”
The article doesn’t let on about just who or why Knowles and her ex decided to fight. But the simple truth is that it’s a lot easier, less stressful and cheaper to sit down across from each other and come up with a deal. That looks particularly true in Knowles’ case. If $16k in bills plus $1,000 per month in child support are about to put her into bankruptcy, she’s obviously not terribly affluent. So why did she get into a divorce and custody fight she couldn’t afford?
Meanwhile, divorce cases can cost a lot more than Knowles is paying.
The Vancouver-based firm of Davidson Fraese Family Lawyers pegs the typical cost of a trial for divorce proceedings at well over $50,000 in legal fees and court costs.
“Where large estates or difficult parenting issues are involved, legal fees and expert witnesses such as asset valuators or psychologists can be required, adding to the cost,” the firm’s website states.
The question is “why?” Yes, in the very rare cases involving not only large but complex estates, I can see that expert witnesses could make costs mount up. But those are, as I said, rare. The vast majority of couples, whether divorcing or not, don’t have that level of assets.
So what else is there to fight about? Child custody, of course. The article doesn’t mention that obvious fact. In divorce cases, there are two major bones of contention – the estate and the kids. And part of the child custody issue is child support. Beyond those, there are few issues to fight about or be decided and again, for most people, the first issue – a large estate – isn’t.
Nowhere does the article broach the obvious regarding child custody – that it’s the winner-take-all system that’s so problematical, that exacerbates conflict and drives up costs. A presumption of shared parenting would strongly tend to reduce those costs by ensuring that every fit parent would maintain a meaningful relationship with their child following divorce.
And no such article would be complete without some family lawyer cheerily assuring readers that family courts really are all about shared custody.
The often-touted claims made by men that women get preferential treatment in courts and men have a hard time getting custody is something she flatly dismisses.
“The courts have evolved so much in the past 25 years,” said [attorney Heidi] Foshay Kimball. “When I started, the predisposition was to give women custody. That has really changed. The default position is now towards shared parenting.”
Well, isn’t that special? Her claim would be even better if there were any evidence to back it up. But in 2009, Canadian economist Paul Millar actually looked at Canadian custody data, something Foshay Kimball clearly hasn’t done. In his book, The Best Interests of Children, Millar pointed out that for the first three decades of the 20th century, Canadian courts had a clear preference for maternal custody.
Moreover, there appears to be no evidence of a change in this gender preference since that time, and the comparatively recent change in legislation does not appear to have had an immediate impact on the gender imbalance in custody decisions.
By 2011, the Canadian government’s statistical agency, Statistics Canada, found the same.
In 2011, seven in ten separated or divorced parents indicated that the child lived primarily with his or her mother. Another 15% indicated that the child mainly lived with the father, while 9% reported equal living time between the two parents’ homes.
And since the linked-to article is quoting lawyers, I may as well too (Toronto Star, 10/2/09).
"Fundamentally, men get screwed in family court," says one veteran divorce lawyer on condition her name not be used. "Judges make sure that assets are split equally, but they don’t do that on custody and child-related issues."
Members of Parliament agree.
A decade after Ottawa’s Special Joint Committee on Child Custody and Access recommended an overhaul of Canada’s divorce system – and more equitable child-custody arrangements – fathers still face an uphill battle.
"It’s as bad or perhaps worse now," says retired MP Roger Gallaway, who co-chaired the committee and its landmark 1998 report, "For the Sake of the Children," and still gets calls from fathers shocked at their treatment in the family court system.
If someone wants to produce actual evidence of a change toward shared parenting decisions by Canada’s judges, I’ll be more than pleased to report it. Until then, I take the facts as given. Divorce lawyers should too, but I won’t hold my breath.
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