I. Introduction, Outline and Methodology2017-03-03T18:33:19+00:00

            Family relationships are both a source of profound satisfaction, and a source of profound challenges for Ontarians.  All family relationships end eventually, and it is not always death which does them part. At least 40% of intimate relationships between adults are eventually terminated by the choice of one or both parties.[1]  Some intimate relationships dissolve painlessly. Many others, however, create serious challenges when they end, both for the individuals involved and for Ontario as a whole. From the province’s point of view, these family challenges can be analogized to a public health problem.  The malady in question is not generally fatal, but it is certainly widespread.[2]

            This paper considers first the problem, then the prevention, and finally the treatment. In so doing, it deploys cost-benefit and economic lenses as analytical tools. This paper has been prepared for the family law procedure project currently being conducted by the Law Commission of Ontario (LCO). The LCO’s work will also draw together research on interdisciplinarity in the legal profession and the results of a broad public consultation with Ontarians.  This paper will refer to the findings from these consultations, and seek to relate them to the existing scholarly literature. This paper also includes tentative reform recommendations where they seem to be justified by the research.[3]

            Part I of this paper defines the phrase “family challenges” and introduces cost-benefit analysis, with a focus on its potential and its limitations within this field of inquiry.  Part II identifies three sources of family challenges: (i) the economic vulnerability of Canadian families, (ii) sacrifices in earning potential during family life, and (iii) conflict arising upon relationship breakdown.  Part III turns to mechanisms by which the province might prevent family challenges, either by preventing relationship breakdown or by preventing the challenges which arise upon breakdown.  In Part IV, the paper turns to government responses to family challenges.  Section IV.A is about increasing the legal information and services, and identifying the costs and benefits of alternative dispute resolution and litigation.  Section IV.B analyzes the potential of administrative, state-driven responses to family challenges.  Part V offers a brief conclusion.

 

I. A. Subject Matter: the Families and the Challenges Under Examination Here


            Sociologists, psychologists, and public policy experts have all proposed definitions of the word “family.”[4]  “Family law,” as the subject is taught in Canadian law schools and classified in case digests, may include issues such as child protection and assisted reproduction law.  This paper, however, focuses on families which involve intimate or “conjugal” relationships between adults.  This includes same-sex and non-marital relationships and relationships which do not produce children. The focus of this paper is the challenges faced by these families and their individual members after the adult cohabitation ceases.  However the roots of these post-cohabitation challenges must be traced to the experience of the family members during cohabitation.

            This paper encompasses neither families which never involved an intimate relationship between adults, nor families in which the intimate inter-adult relationship never dissolved. The rationale for this limitation of scope is that there is a distinct set of challenges posed by the dissolution of intimate relationships between adults. These challenges are those discussed in sections II.B and II.C – sacrifices in earning potential and interpersonal conflict arising on relationship breakdown. Other families — the family involved in a child protection proceeding, the family seeking access to artificial reproduction technologies, the single parent seeking to support an adopted child — face a distinct set of challenges. Because the time and space available do not permit a thorough treatment of this second set of challenges, they must be left for another paper.

 

I. B. Unit of Analysis: Individual or Family?


            This paper will consider the welfare and interests of Ontarians who were members of families, while seeking to simultaneously keep in view the interests of families as units.  Our family law and our dispute resolution system currently focus on the individual rights and obligations of family members.  To some extent, this is an inevitable consequence of our law’s aspiration to protect the interests of (i) people who no longer wish to cohabit, and (ii) individuals whose intimate relationships have been terminated by the other party.  The Canadian Charter of Rights and Freedoms has arguably helped entrench the individualism of Canadian family law.[5]

             However, it is also possible to think creatively about protecting the interests of family units, even when those families appear to be disintegrating.  At least if children are present, dispute resolution can be conceived not as the end of a family but rather as a reconfiguration of a family.[6] The law aspires to preserve a child’s relationships with both parents in most cases.[7]  Therefore, parents often do not or can not entirely disentangle their lives for as long as their child or children remain below the age of majority. This may require family law process to consider the emotional health of the parents, and the need to support a modified, post-cohabitation “family.”[8]  Doing so can make the adults into better parents, which supports the law’s overriding goal in parenting litigation of upholding the best interests of the child.[9]

            There is some precedent in the literature for a focus on families as units.  There is also an ongoing popular and scholarly debate about whether or marriage is itself “in decline.”[10] The focus of interest in this debate is not so much the well-being of the individuals within families as it is the well-being of the families as units.  The case for triage or differentiated case management is largely based on the idea that different families (as opposed to different individuals) are best served by different services and dispute-resolution approaches.[11]  The costs and benefits of focusing on family units versus individuals awaits a fuller exploration, but the literature does provide a basis to explore this intriguing possibility.  The interests of broader communities and of Ontario as a whole may be correlated with a progressive and therapeutic response to family units in crisis.  This paper will, whenever possible, seek to incorporate both the individual and the family as units of analysis.

 

I. C. The role of choice in the formation of family

            Different scholarly perspectives have come to different conclusions about the role of choice within the formation of the family.  To some extent, intimate conjugal relationships may be understood as voluntary, contractual arrangements established by consenting adults for mutual benefit.  The mutual benefit is psychological but also financial, insofar as cohabiting and sharing expenses can raise the material standard of living for both parties.

            Alternatively, these relationships may be sites of coercion and power.[12]  Meg Luxton, for example, suggests that

women’s primary responsibility for domestic labour, and particularly childcare and other caregiving responsibilities, is central to women’s economic dependency on men … the nuclear family form results in women doing vast amounts of socially necessary labour for free and in ways that are not recognized or validated socially.[13]

            Choice is also a central issue in the debate about distinctions between cohabitation and marriage.  Some scholars argue that the law should not make distinctions between couples who have cohabited for extended periods and couples who married.[14]  Others reply that the choice to marry or not marry is a significant one, from which private family law consequences may legitimately follow.[15]  Another line of critical inquiry focuses on the concept of “conjugality,” and queries whether the law should distinguish between those whose cohabitation is “conjugal” and those whose cohabitation is not.[16] 

            Marriage itself and its historical development have been widely explored in the sociological literature.  Ernest Burgess argued in 1945 that, near the beginning of the 20th century, a transformation had occurred in the United States from “institutional marriage” to “companionate marriage.”[17]  Whereas the former type of marriage was a “building block of society” and regulated by social norms, the latter was fundamentally defined by the affective bonds between the parties and by their choice of each other.  John Amato and his colleagues have suggested that this trend continued into the post-war period:

As men and women gained greater freedom to engage in multiple sexual relationships before marriage, marry whomever they pleased, negotiate their own marital roles, and leave unsatisfactory unions, people came to focus increasingly on whether potential spouses would be good companions, emotionally supportive mates, and satisfying sexual partners.[18]

            This development appears to have elevated the importance of individual choice in the formation intimate relationships. Andrew Cherlin argued in 2004 that a second transformation had subsequently occurred, towards “individualized marriage, in which the emphasis on personal choice and self-development expanded.”[19]  Amato et al suggested in their 2007 book that “we may be witnessing a shift toward a new view of marriage that values the institutional basis of marriage but also recognizes the importance of companionate and individualistic elements – a form of marriage in which individual happiness and obligations to the larger society are in balance.”[20]

            In a diverse and multicultural jurisdiction like Ontario, it is likely that the nature of intimate relationships, and the extent to which they are the products of choice or coercion, are highly dependent on the values and cultural background which the parties bring into them.  Kerry Daly’s comments about “parenting culture” might be equally applicable to the influence of culture on decisions about family relationships generally:

Culture consists of an ever changing constellation of meanings and practices, that provides a means for examining the flow of family experience within context … In our everyday lived experience, culture is usually hidden from view, because it is so familiar and so deeply embedded in our habits and routines. For parents, this often means that the everyday decisions of parenting are shaped by non-specific, background undercurrents that guide what seems right, natural or appropriate. Culture is paradoxical insofar as it is pervasive in everything we do but so often it is indecipherable. It is a case of the fish not being able to see the water in which it swims.[21]

            To the extent that intimate relationships are the product of choices, to what extent are they economic choices?  It is generally thought that decision-making in intimate relationships and between family models is driven by emotional or cultural factors, rather than economic ones.  However, studies of the decision whether to marry have identified relevant economic incentives and disincentives to marriage.[22]  Pre-marital and cohabitation contracts are entered into by at least some Canadians, and those who do so are clearly aware of the economic consequences of intimate relationships and their potential breakdown.[23] 

 

I. D. Evaluative Tool: Cost-Benefit Analysis


            This paper will seek to apply cost-benefit analytical tools to family challenges and our responses to them.  Cost-benefit analysis (CBA) has been defined as the

Attemp[t] to place a dollar valuation on the outcomes of a program or intervention and to answer the question: How much is society willing to pay for the output of this program or what are the benefits to society of having this output?  The dollar valuation of this output or the benefits are then compared with the costs of producing it. If the benefits exceed the costs, the program is considered to be an efficient use of society’s resources.[24]

            CBA originally sought to identify “Pareto improvements,” which is to say changes in policy which would make at least one person better off without making anyone worse off.[25] Following the work of Nicholas Kaldor and John Hicks, CBA came to accept that a change can be described as “efficient” even if someone is made worse off, provided that everyone would be better off if  the “winners” from the change were to compensate the “losers.” [26]  CBA has been widely applied to the study of environmental and other regulation[27] and to proposals for new government expenditure, for example in health care.[28]  However, it has also been criticized for inattentiveness to distributional questions and for its attempt to put a dollar value on human life or other things which should arguably be considered “priceless.”[29]

            Formal cost-benefit analysis generally requires (i) a quantification of benefits and costs and (ii) an arithmetic comparison of them.  Often many of the numbers in the equation are speculative, insofar as they refer to an uncertain future or contra-factual situations.[30]  Even if they are real and have already been incurred, determining the true costs and benefits of public sector initiatives is very challenging. Regarding costs, the theoretical efforts of Canada’s Parliamentary Budget Office and its counterparts are helpful.[31]  With regard to social benefits, the work of the Commission on the Measurement of Economic Performance and Social Progress led by economist Joseph Stiglitz is also useful.[32] 

            Assuming that costs and benefits can be quantified, cost-benefit analysis may be used to identify investments of public funds which will “pay for themselves” or produce benefits which exceed their costs in the long run.  For example, a recent report from the Ontario Association of Food Banks argued that poverty costs $10.4 billion to $13.1 billion per year for the federal and provincial governments, or $2,299 to $2,895 per year per Ontarian household.[33] This report divides the social cost of poverty into three components.  The “remedial costs” include governmental health care, crime-response, and social assistance expenditures which would not exist in the absence of poverty.  The “intergenerational costs” are created by the inherited impediments and needs of children of poor families.  “Opportunity costs” are the provincial revenues which are lost because of citizens being less economically productive than they would be in the absence of poverty.[34]

            Cost-benefit analysis is compatible with a variety of different choices about what’s important to us as a society. In the words of Cass Sunstein, CBA

should not be seen as embodying a reductionist account of the good, and much less as a suggestion that everything is simply a “commodity” for human use.  It is best taken as pragmatic instrument, agnostic on the deep issues and designed to assist people in making complex judgments where multiple goods are involved.[35]

CBA requires, and is not an alternative to, a conversation about our values as a society. This conversation is necessary in order to place dollar figures on the various outcomes of public policy options.  As an analytical technique, CBA is compatible with a variety of alternative schemes for valuing these outcomes, such as the Genuine Progress Index (GPI).  The GPI is an index of human progress which was designed as an alternative to more purely financial measures such as Gross Domestic Product or Gross National Product.[36]  Formulations of the GPI often include items such as “cost of family breakdown” and “value of non-paid household labour” which are directly relevant to any application of CBA to family policy issues.[37]

 

I.D.1. Applying CBA Methodology to Family Challenges: Limitations


            The methodological difficulty of quantifying speculative costs is particularly biting in the field of study under examination here. For example, a true cost-benefit analysis of the parent education program in Toronto’s Superior Court might have to determine how much further litigation would currently be occurring had the program never been put into place. The long-term impact of different procedures and interventions upon children is also little understood, largely due to the ethical challenges of scientifically controlled research on children.[38] 

            Assessing costs of family dispute resolution for the participants also requires looking outside of family law itself.  An example of this approach is Walking on Eggshells: Abused Women’s Experiences of Ontario’s Welfare System, a report prepared by a multidisciplinary team in 2004.[39]  This report identified a nexus between family law disputes, social assistance, and domestic violence.  Ontario Works (the provincial social assistance system) is a means-tested program.  In order to be entitled, an applicant must show that he or she remains below a certain income level despite having made “reasonable efforts to obtain compensation or realize” all “financial resource[s] or income that the person may be entitled to or eligible for.”[40]  An applicant who is entitled to child support from a co-parent must therefore make efforts to obtain it.  If the applicant has experienced domestic violence at the hands of this co-parent, then the obligation to pursue him or her for child support may create vulnerability to further violence.  The Ontario Works Policy Directives respond to this danger by providing that “individuals at risk of domestic violence are not expected to pursue support and may be granted a waiver.”[41]  However, the Walking on Eggshells authors reported that many individuals who would have benefitted from this waiver were unaware of it. Within their interview sample, only 2 out of 34 claimants who might have qualified for the waiver were even aware of its existence.[42]  One interviewee reported:

I was told absolutely, that I had to go for child support even though I told them that it was a dangerous situation, they still said I had to do it if I wanted to receive benefits from them. And then they turned right around and said they were going to take it.[43]

While this specific account cannot be corroborated, it is probably representative of the experience of at least some domestic violence victims.  The pressure to pursue child support faced by social assistance recipients is an example of a “cost” imposed by our family service delivery system and borne by an already vulnerable group.  However, it is very difficult to imagine how this cost might be quantified.

            As discussed below, there is a substantial literature evaluating experiments and pilot projects in the family dispute resolution sphere. The value of these projects is most often measured in terms of the settlement rate – how many of the litigants withdrew from litigation after engaging in the initiative under study.  Settlement rates are a helpful indicator proxy for the benefits of a family process reform initiative, but a settlement might be exploitative or not durable. For this reason follow-up interviews and questionnaires with participants, asking for example how many would recommend a particular intervention, are a useful complement to settlement rates. [44]

             These studies provide a basis for comparing the costs of specific types of ADR to the process costs of litigation, but they do not generally consider broader costs and benefits (including non-financial ones) to adults, to children, and to communities.  Identifying these costs and benefits would be necessary in order to perform a formal CBA. The evaluation of Australia’s 2006 reforms conducted by Rae Kaspiew and her colleagues is extremely comprehensive and exceeds 400 pages in length, but even this thorough document is not able to perform a formal and quantified cost-benefit analysis.[45]

            More broadly, it is not clear that one can ever quantify the value of intangibles such as preserving access to justice,[46] cultivating forgiveness between the parties,[47] or other costs and benefits offered by litigation and alternative responses to family challenges.  Nonetheless the literature has recognized that such items have a value which can be weighed against other values.  For example, the conclusion of McIntosh et al regarding Australia’s “Children’s Cases Program” pilot project was that  “a loss in apparent judicial impartiality amounted to a clear gain for many parents, who were more often reached, moved, and inspired by a judge who entered their struggle.”[48] 

 

I.D.2. Applying CBA to Family Challenges: Potential


            Cost-benefit analysis in its formal and technical version has not often been applied to family law policy questions.[49]  However, there are a few interesting examples of less structured applications of similar, economically-oriented analytical tools to family challenges.  A 2009 submission to Ontario’s Attorney General argued for the funding of “Case Assessment Coordinators” and expanded mediation services in Ontario courts.[50] This argument was supported by an Appendix identifying the various cost components of implementing this proposal at one court. The Appendix also identified the cost of the proposal per case diverted from court.[51]     

            Even when the quantification required by formal CBA is impossible, costs and benefits are identified in a less technical way in family law policy debates. “Informal” CBA might simply mean focusing on costs and benefits of alternative responses to family challenges and using this thought process to generate reform ideas.  An example is found in the debate about whether the law should encourage more “equal” divisions of parenting time after a relationship ends.  It is a generally acknowledged benefit to children to have parenting arrangements which preserve meaningful relationships with both of their parents.[52]  However, inter-parental conflict is a generally acknowledged cost or detriment to children, especially if the children are aware of or observe that conflict.[53]  The effort to preserve relationships with both parents by ordering joint custody may often increase the level of conflict. Substantial debate continues about how to balance the benefit against the cost.  Scholars question whether reforms to strengthen children’s relationships with both parents post-separation (benefit) would increase conflict (cost) to the extent that there is a net detriment for the children.[54]

 

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