Tuesday, January 18, 2011

Family Law: is it all for show?

Reform has value.  There is probably always a better way to do things.  Family Law is no exception.  I'll say that going in.

But some reform is ill conceived and ill informed.  Every now and then there's a notion to streamline Family Law, which is to say, make it more of an administrative matter rather than a legal matter.  I think that's a bad idea.

I need to digress here.  By administrative matter I mean a resolution based upon a pre-set formula contrived to create a pre-designed result, a cookie cutter approach.  For example, Worker's Compensation uses the administrative method to achieve its ends.  By regulation your hand is worth a specific sum, your foot is worth a different specific sum.  In the end, it largely boils down to math.  There is no nuance.  There is no subtlety.  The very facts that should make a key difference do not, because Worker's Compensation has decided that it is a waste of time.  Just lower the standard and lower the result.

On the other hand (no pun intended), you have the legal method which is much more open ended.  Rather than formulas which dictate an outcome, the legal method provides a trier of fact, usually a judge, who has great discretion to do what is right.  There are norms within "what is right" as established over time and within the collective of the judiciary.  This is largely what is meant by "Common Law."  But what is right is affected by nuance and subtlety.  What is wrong in one context can become right in another.  These facts matter greatly in real life, but they can't matter if they fit outside of the formula of an administrative method.

So the reform of Family Law sometimes comes down to requiring that everyone's case fit a pre-determined model, the cookie cutter approach.  It comes down to deciding that a whole host of facts (elements of people's lives) just don't matter.

Many Family Law cases can almost be handled in a cookie cutter fashion.  There is no doubt but that this approach is the least expensive.  Uncontested Divorce cases are manageable and affordable precisely because of this approach. But not all cases can be forced into a pre-determined model to achieve a cookie cutter result.  Divorcing parties would be ill served by such an approach, and, given the low level to which administrative cases are relegated, Family Law would be ill served by being just another aspect of life that has been relegated to the administrative remedy.

I can imagine the administrative divorce. "Next," the civil servant would call from her window.  "So you want a divorce?" she would ask, reading from the form you had completed a few hours ago when you first entered the large room filled with scores of other applicants.  "Yes," you'd say, hoping that she hadn't found some defect with your paperwork.  "Fine," she might say, checking boxes on the form.  "Your wife gets the kids.  You get to see them on Saturdays from noon until three and Wednesdays from six until eight."  "But I work on Saturdays," you might say.  "I guess you won't see them, then," she'd reply.

And so on, and so on. It's not a pretty picture.

The legal approach is, at its core, flexible.  It can be fraught with drama, with intrigue, with high level diplomacy and skulduggery.  It can be inefficient.  But it is also effective, thorough and to an incredible extent, tailor made to the circumstance.  Given the enormity of the legal institution, it is amazing that the system can be as flexible as it is.

And few people feel that their lives, their circumstances, their wants and their needs are ordinary, are average or appropriate for cookie cutter solutions.  Given the weight of issues that arise everyday in Family Law, few are.

So, the art, the practice of Family Law is not all for show, though there is a fair bit of show to it.  But, as the drama of human life goes, it calls for the show to give it the attention it deserves and to get it right.

To me, then, the bottom line: leave Family Law flexible.  Don't try to make a round peg fit into a square hole or vice versa.  Individually crafted solutions work.  Institutional, administrative orders that apply to no one, don't.

Michael Manely

No comments:

Post a Comment