Family Court Reform: What’s Holding It Back?

One of the enduring mysteries for many Canadians, knowing that:

• 80% of Canadians support Family Court Reform, consisting of a rebuttable presumption of Equal Parenting.
• The Conservative Party of Canada ran in the 2011 Election with a platform plan supporting Family Court Reform.
• The majority of recent research on children after divorce supports a rebuttable presumption of Equal Parenting.

is the question, “Why is it so difficult to reform the Family Law System?”

Most of us have heard the term “Military Industrial Complex.”   It was a term popularized in the 1960’s to described the political alliances formed among the U.S. Defense Department, members of the U.S. Congress, and suppliers of defense equipment to ensure a high volume of defense-related procurement and expenditure, regardless of the preferences of the American public and taxpayers.

The term “Military Industrial Complex” is a specific example of a concept that political scientists call “The Iron Triangle.”  In an Iron Triangle, small groups can “capture” a government bureaucracy to ensure its priorities, decisions, and actions favor the interests of the small group over the preferences of voters and taxpayers.  In the case of Family Law Reform, the small group is the Canadian Bar Association Family Law Section (37,500 Lawyers), and the Government Bureaucracy is made up of the Federal and Provincial Departments of Justice and the Courts operated under Federal and Provincial jurisdiction.

Here is a graphical description of the Family Law Iron Triangle as it exists today in Canada (click on the image to view it in full size):

 

This diagram summarizes the relationships between the CBA, the Department of Justice and Courts, and Parliament which drives the engine of Family Law to produce outcomes where most (81% of) children adjudicated by the Family Courts live in single parent homes, in spite of the fact that the majority of social science in the last 20 years demonstrates that Equal Parenting produces far better outcomes for children of divorce and separation.

Why do the CBA and government, which purport to operate in children’s best interests, stand in the way of Equal Parenting?   Because that’s where the money is.  Courts, by conducting exhaustive inspections of children’s best interests, which nearly always (81% of the time) result in either sole custody or joint custody/primary residence to the mother, create the opportunity for substantial legal fees, and create a competition between the parents to be the “winner” or the “loser”.

The legal fees are currently estimated at a minimum of $4B per year for all of Canada, making the Family Law “business” one of the larger industries in the country.  Family Law Reform, even with all of its benefits for children, hurts this industry by reducing conflict among most parents who previously have had to resolve their parenting responsibilities in the Courts.

It should be no surprise that in the first hour of debate, Second Reading for Bill C-560, both the Liberal Party of Canada (Sean Casey, Justice Critic) and the NDP (Francoise Boivan, Justice Critic) opposed the Bill.   Most of their objections came straight from the CBA Press Release issued the day before debate began.

How can we overcome this powerful lobby to deliver real reform to our children?   Each of us can contact our MP’s to remind them that Canadians support Bill C-560, and that we will support leaders who support Family Law Reform in future elections.

Special thanks to Professor Tony Madonna, of the University of Georgia, whose notes for his Introduction to Political Science course (POLS 2000) were adapted for the diagram above.