The challenges which Ontarians experience after family separation often have roots within the economic life of the intact family. Ontario’s families are highly vulnerable to the economic challenges of relationship breakdown, due to low levels of savings and high household expenses relative to household income. Individuals who have curtailed labour force participation in order to assume domestic responsibilities within a family face unique challenges if that family dissolves. Whatever economic arrangements prevail within the intact family, some degree of conflict often accompanies the end of a relationship, and this is another major source of family challenges.
A recent case report tells the story of an Ontario couple who experienced many typical family challenges.[55] The story of their relationship and its dissolution is told below. Subsequent sections of this paper will make reference to this story, in order to illustrate the nature and impact of family challenges.
Ronald Peters and Beatrice Smith met in 1974, when both were employed by the federal government. Beatrice was 18 years old at the time; Ron was 27 and had two children from a previous relationship. Three years later, Ron and Beatrice moved in together and began living as a couple. For the next 11 years, they lived together in various Canadian towns to which Ron was posted by the Canadian government. In 1988, they got married. Ron soon received a promotion, becoming manager of workplace a small Ontario town.
Beatrice was still working in another office of the same federal ministry at the time. She fell afoul of the criminal law after taking financial advantage of her employer. She was convicted and incarcerated for theft, fraud, and forgery. Although this development had an impact on both parties, their relationship survived the blow. In 1995 Ron and Beatrice moved south, to a larger city. They opened a small print and copy shop.
When they arrived in their new city, Beatrice was 40 years old and Ron was close to 50. They had lived together for 18 years. Although Beatrice’s criminal charge was still hanging over them unresolved, they established themselves in a new city and were probably optimistic about becoming entrepreneurs. They also had another reason for joy – Beatrice was pregnant with their first daughter, Sarah. Sarah was born on Canada Day 1995. Her sister followed almost exactly three years to the day later — June 30, 1998.
Ron and Beatrice devised a schedule to allow them to care for their infant daughters and their infant business at the same time. Ron, who left the federal workforce after moving, cared for the babies from Monday to Friday while Beatrice staffed the business. On the weekend, they would switch roles; with Beatrice at home and Ron dealing with the business. Despite these diligent efforts, the store was never very successful. In 2006, a judge found that it was losing over $10,000 per year, and it subsequently became bankrupt.
In June 2005, Beatrice suddenly moved out of the parties’ home. She apparently did so without any warning or prior announcement. However, she must have had her reasons for ending a 30 year relationship.
Despite — or perhaps because of — their many decades together and their two young children, the parties were unable to part company amicably. It may be that they had never been very happy; a judge later found an “undercurrent in the evidence of some domestic violence between the parties and a power imbalance in the relationship of the parties.” [56] When Beatrice left the matrimonial home in June of 2005, she took the children with her to a location which she did not disclose to Ron. Ron did not find out where they were living until the following January. He had no formal access to his daughters until one year after the separation. At that time, weekly supervised access visits of one hour in duration began.
Infuriated, Ron responded by creating a series of internet sites and conducting a public campaign against what he alleged were Beatrice’s efforts to alienate the children from him. He wrote a letter denouncing Beatrice to the principal of the girls’ school, and also created and distributed “press releases” about her and about the parties’ dispute. The Office of the Children’s Lawyer became involved in the case in 2006, and a social worker from that agency prepared a report which was used at trial. A social worker from the local Children’s Aid Society was also active in the case. A six-day trial occurred in late summer 2009, at which neither party had the benefit of a lawyer. Beatrice did not even formally testify, although she did present her case to the court and had witnesses speak for her. The central issues in the trial were the parental alienation allegation, child custody, child support, and division of family property.
II. A. Economic Vulnerability of Canadian Families
The Peters are somewhat indicative of this economic vulnerability of Canadian families , although they were perhaps better off than most. Ron Peters was fortunate, to have a secure pension from the Government of Canada paying $48,306 per year.[57] Beatrice’s income was not disclosed by the case report. However, the parties worked for ten years to build a business which appears to have consistently lost money and eventually gone bankrupt. At the time of the judgment, Ron owed over $50,000 to the Canada Revenue Agency and Beatrice owed $26,000 to a credit counselling agency. After 30 years of hard work, their collective net worth was less than $300,000.[58]
The end of an intimate cohabitational relationship is a time of financial stress for its members. At the very least, cohabitation’s economies of scale are suddenly lost and transitional costs of establishing new domiciles must be absorbed. Subsequent sections of this document will describe in detail the financial costs of relationship breakdown and family litigation. The ability of individuals to meet these challenges depends substantially on their economic position before the break-up occurred, and there is evidence that large numbers of Canadian families are already “on the edge” financially and ill-equipped to deal with relationship breakdown. There is also evidence that the poorest Ontarians (those earning less than $20,000 per year) are 33% more likely than other Ontarians to experience family relationship problems.[59]
Canadians have become steadily more indebted and less likely to have savings, and this trend has persisted through economic recessions, recoveries, and booms. This trend has reduced the ability of Canadians to draw upon reserves of cash and property in order to cushion the financial blow of relationship breakdown.[60] The following chart, adapted from a recent Vanier Institute report authored by Roger Sauvé, illustrates the steadily increase over time in average debt per household.[61]
Figure 1: Average Canadian Household Debt in Constant 2007 Dollars
One indicator of the capacity of Canadian households to “carry” this increasing debt is the ratio of household debt to income. This measure reached a new record of 145% in December of 2009.[62]
Turning from net wealth to household income, we find that many Canadian families are “just getting by.” A key driver of increasing debt loads is the decreasing ability or willingness of the average household to save. The average annual savings of Canadian households decreased from $7,700 in 1990 to $2,800 in 2000, although it recovered by 14% between 2000 and 2010.[63] In the third quarter of 2009, the average Canadian household earned $66,200 and spent $63,000.[64] The Canadian Payroll Association, reporting on a survey conducted in September of 2009, found that “59% of Canadian employees report they would have trouble making ends meet if their paycheque was delayed by even one week.”[65] Given these financial realities, it is easy to see how the sudden and dramatic costs of relationship breakdown – such as legal fees and finding new housing – can be disastrous for Ontario’s families and their members.
II. B. Sacrifices in Earning Potential Undertaken in Intact Families
As noted above, intriguing scholarly debates surround the role of economic and other choices in family formation. Economic choices remain highly significant within the life of an intact family. If an individual chooses (or is coerced into) making sacrifices in earning potential while cohabiting in an intact family, those sacrifices give rise to financial difficulties after the relationship dissolves. Family responsibilities often lead Ontarians to make such sacrifices, and this is therefore a post-relationship challenge which has roots within the economic life of the intact family. This section will discuss the nature of individual earning-potential sacrifices, the persistent gender pattern in this phenomenon, and the post-relationship impact of earning-potential sacrifices.
II. B. 1. How Family Life can Lead to Sacrifices in Individual Earning Potential
Sacrifices in earning potential typically take the form of an individual’s (i) choices to reduce participation in educational or training programs which would increase an individual’s earning potential; (ii) choices to voluntarily depart from the workforce, temporarily or permanently; or (iii) choices about where, how, and how much to work while within the workforce which diminish long-term earning potential. An example of this third type of sacrifice is Beatrice Peters’ relocation between various Ontario towns as required by Ronald Peters’ career.[66] Even though she worked in the same industry as her partner, such moves probably diminished her earning power.
Simply cohabiting in an intimate relationship may lead to such sacrifices being made. In Beatrice Peters’ case, for example, they occurred long before she had children. In addition to income, a household requires a certain amount of domestic labour in order to function. It may be efficient for one party to curtail education or employment in order to discharge these functions, leaving the other to concentrate on income-generation.[67] Even in the absence of efficiency gains, this arrangement may be adopted due to social pressures or gender role expectations.[68]
However it is the presence of young children which makes sacrifices in individual earning potential most likely.[69] While the time required for domestic labour other than parenting may have declined with technological advances,[70] parenting remains very time consuming and is, perhaps, becoming more so.[71] Becoming a parent therefore provides a much stronger incentive to curtail employment or education than does simply cohabiting or marrying. Many parents must pay for child care in order to continue working or attending school, and a substantial number are not capable of earning wages much in excess of what child care costs. For these parents, sacrificing earning potential in favour of parenting is, in the short term, actually a way to save money. For other parents, emotional and/or social pressures push towards earning-power sacrifices.
The judgment of Justice L’Heureux-Dubé in the landmark 1992 Supreme Court Case of Moge v. Moge clearly identified the connection between parenting and individual earning-potential sacrifices:
The most significant economic consequence of marriage or marriage breakdown… usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well‑being.[72]
Some parents leave the workforce entirely, either permanently or (more commonly) for temporarily during the infancy of their children. Others remain employed but work fewer hours, choose flexible employment, or work night shifts so as to balance family schedules.[73] The percentage of Canadians working weekends, evenings, nights, or rotating shifts increased from 23% to 29% between 1992 and 2009.[74] The Peters’ arrangement – Ron home with the kids Monday to Friday, Beatrice at home on the weekend, each parent minding the shop when not parenting – is one example of this phenomenon. Employment decisions made in order to facilitate parenting can easily curtail individual or household earning potential in the short or long term. The Peters’ decision to leave guaranteed paycheques in the civil service and open a risky business which ultimately failed may have been motivated by the birth of their first daughter.
II. B. 2. Quantifying Parenting
What Justice L’Heureux-Dubé demonstrated in Moge remains true today: women are substantially more likely than men to make sacrifices in their earning potential due to family responsibilities. For this among other reasons, they are more likely to experience financial challenges after relationship breakdown. However, the available data does suggest a demographic trend to a more balanced distribution of wage-generating and domestic tasks within Canadian households since Moge was decided.
A substantial body of literature exists about the gender allocation of parenting responsibilities in Canadian households.[75] Perhaps the most obvious measure of parenting contributions is quantity of time which adults spend with their minor children. However scholars have identified other relevant contributions to parenting. Joseph Pleck suggested that paternal involvement can be measured in terms of (i) the nature and quality of interaction with children and (ii) taking responsibility for decision-making, in addition to (iii) absolute number of hours spent in parenting.[76] Duxbury and Higgins suggest that a parent who is responsible for children and makes decisions on their behalf experiences more stress than a parent who simply spends time with them.[77] This might mean that parents in the former group are more likely to make individual earning-power sacrifices in order to cope.
II. B. 3. Persistence of Gender Patterns
However parenting is defined, researchers have found that women today usually do more of it than men do. Duxbury and Higgins (2001) asked Canadian parents who had the “primary responsibility for child care” in their families. 63% of women replied that they did so, and 50% of men replied that their female partners did so. Roughly 39% stated that responsibility was shared.[78] With regard to responsibility for child care, Duxbury and Higgins found little change between 1991 and 2001. Another interesting indication comes from the National Longitudinal Survey on Children and Youth. In conducting this survey, Statistics Canada telephoned Canadian households and asked to speak to the “person who is the most knowledgeable” about the child. In 92% of the cases it was the mother of the child who came on the line.[79]
The gender pattern may be most pronounced with regard to the youngest children.[80] Kerry Daly reported that, in 1998, “employed mothers in dual earner families with a child under 5 years of age spent an average of 91 minutes per day in personal childcare activities (feeding, washing and dressing children) compared to 47 minutes among fathers.”[81] Citing a 2001 book about American women, Thomas Oldham recently noted that “only 34% of married women with children younger than age six work full time.”[82] Canadian law allows either mothers or fathers to take “parental leave” from paid employment immediately after the birth of a child. Because this program does not replace the entire income of the parent, it constitutes a sacrifice in individual earning power undertaken in order to discharge family responsibilities. Gillian Ranson observes that mothers remain much more likely than fathers to take parental leave, and this is another example of the persistent gender role pattern.[83] In fact, fathers are less likely to have employment interruptions of any kind than childless men are.[84]
Beaujot and Ravanera analyzed time-use data from the 2005 General Social Survey conducted by Statistics Canada, in order to determine how men and women are dividing paid and unpaid work within families anchored by adult heterosexual relationships.[85] Their results neatly summarize the persistence of a traditional gender pattern in Canadian families:
the complementary-traditional (he does more paid work, she does more unpaid work) is the predominant model with 32.9%, followed by woman’s double burden (she is doing same amount of, or more, paid work, and more unpaid work) with 26.8%. … the role-sharing model, in which they do the same amount of unpaid work, comprises 26.5%.[86]
These gender patterns are reflected in another finding from the same study: Canadian women tend to have jobs with more flexibility but lower pay than those of men.[87] This is logically consistent with women’s efforts to balance paid employment with domestic labour.
Most recently, Ranson’s 2010 book Against the Grain provided a helpful literature review on these issues.[88] The focus of Ranson’s volume is couples who have adopted equally-shared or female-breadwinner family models. While arguing that this group constitutes a “vanguard,” she acknowledges that they are not representative of the majority. Ranson’s conclusion is that “the bottom line, in Canada as in many other industrialized countries, is that the responsibilities of parenthood continue to be ‘gendered and privatized,’ with mothers continuing to face greater demands than fathers.[89]
II. B. 4. Evidence of Change and Gender Role Convergence within the Family
Despite the persistence of traditional gender roles, there is also evidence of historical and ongoing change. These changes may reduce the prevalence of individual earning-potential sacrifices, or distribute them more equitably among family members. This could ease the post-relationship financial disruption which these sacrifices cause.
The most dramatic social change has been the increase in female labour force participation over the past half-century. Between 1960 and 2000, the proportion of Canadian women in the labour force rose from 32% to 71%.[90] Canadian women still earn less than men on average — $24,400 versus $39,300 per year in 2003.[91] However, the gender wage gap shrank steadily between 1967 and 2003.[92] Over the course of this period, women’s participation in registered retirement savings plans (RRSPs) and employer-sponsored pension plans also steadily increased, coming very close to gender parity on some measures.[93] Kerry Daly observes that the “dual earner family” (both parents in the work force) is now the “dominant family form in Canada” and accounts for 7 out of 10 two parent families.[94] Ranson adds that “the majority of young Canadian families in all regions, as well as in all economic, ethnic and language groups, have both parents either in the paid labour force or in education or training programs.”[95]
Looking forward, Beaujot and Ravanera note that the growth of the service sector and the knowledge economy may benefit female workers more than male workers. This is because women are more likely than men are to work in service industries, and also more likely to pursue post-secondary education.[96] Increased female labour force participation has certainly not “solved” the problem of post-relationship economic disruption caused by individual earning potential sacrifices. However, it has reduced markedly the number of women who have no capacity to earn income after a divorce or separation.
Significant, although less dramatic shifts have also taken place in the work and parenting behaviour of Canadian men. There has been some decline in male labour force participation since 1971, roughly the same period during which women’s labour force participation was dramatically rising.[97] Referring to American data, Ellen Galinsky and her colleagues observe that “men are taking more overall responsibility for the care of their children in 2008 than in 1992, according to themselves and their wives/partners.”[98] Daly confirms that in Canada too, “the dominant trend in the contributions that women and men make to parenting and domestic work is one of convergence with women doing less and men doing more.”[99] The Peters’ parenting arrangement in Sault Ste. Marie is representative of this trend, with Ron acting as the primary stay-at-home parent.[100] Gillian Ranson argued that the non-traditional Canadian households which she studied (like the Peters) are at the vanguard of “change evident on a global scale,” and that “all this change, however slow and slight, is in the direction of more egalitarian relationships in the home.”[101]
II. B. 5. Post-Relationship Effects of Sacrifices
Earning potential sacrifices are and will continue to be a consequence of family life for many if not most Canadians. As noted above, this is most powerfully true for parents. The more non-paid family responsibility or labour an individual assumes, the more likely it is that he or she will curtail education or labour force participation. When and if those relationships end, what are the continuing effects of the earning-potential sacrifices which individual family members make?
The judgment of Justice L’Heureux-Dubé in Moge gives a foundational account of the connection between earning-potential sacrifices within relationships and economic problems afterwards:
Once the marriage dissolves, the kinds of non‑monetary contributions made by the wife may result in significant market disabilities. The sacrifices she has made at home catch up with her and the balance shifts in favour of the husband who has remained in the work force and focused his attention outside the home. In effect, she is left with a diminished earning capacity and may have conferred upon her husband an embellished one.
…
The financial consequences of the end of a marriage extend beyond the simple loss of future earning power or losses directly related to the care of children. They will often encompass loss of seniority, missed promotions and lack of access to fringe benefits such as pension plans, life, disability, dental and health insurance.[102]
A substantial economic literature seeks to quantify the “wage depreciation effect” – the long-term impact on an individual’s earnings of temporary absences from the workforce. As noted above, leaving the workforce is the most dramatic (although not the only) type of sacrifice in earning potential which an individual can make due to family responsibilities. In her 2005 article, Kathleen Spivey reviewed and added to this literature.[103] Her study confirmed that “total non-employment time has a statistically significant depreciation effect on wages” and that a wage depreciation effect persisted from early-career interruptions even many years later.[104] With regard to gender differences, Spivey found that “wage losses associated with non-employment were less severe for women than for men, although more past interruptions seemed to matter for women than men.”[105] Robert Leckey notes the continuing economic disadvantage faced by women leaving intimate relationships, which is at least partially attributable to the wage depreciation effect:
recently divorced or separated mothers remain financially worse off than recently divorced or separated fathers … 44 percent of recently divorced or separated mothers have an annual personal income of less than $30,000, contrasted with 19 percent of recently divorced or separated fathers.[106]
The spouse who did not make such sacrifices during the relationship has usually benefitted somewhat from the domestic focus of the spouse who did so.[107] For example, Ron Peters’ ascent through the ranks of Parks Canada to become manager of Pukaskwa National Park might have been impossible had Beatrice not been willing to move with him between various postings.[108]
The legal remedy of spousal support is, among other things, designed to compensate the spouse who made earning-power sacrifices using the income of the spouse who did not.[109] However, spousal support is by no means a complete solution to this problem. It is ordered and/or paid in only a small minority of divorces and separations, and in the Peters’ case spousal support was not claimed. Carol Rogerson estimated in 2002 that spousal support was paid in only 10-25% of divorce cases,[110] although it is possible that the development of the Spousal Support Advisory Guidelines since that date have increased its prevalence. The Guidelines themselves propose a payor income “floor” of $20,000. If neither spouse earns more than that amount, it is very unlikely that spousal support will be paid.[111]
II. C. Conflict arising from relationship break-down
Family challenges are created not only by the economic life of the intact family, but also by what happens when the intimate relationship at the heart of the family dissolves. Most relationship break-downs are characterized by some degree of conflict between the adult parties. The Peters’ case had an unusually high degree of conflict, but family justice system workers will recognize as familiar many of the manifestations of hostility from that case. If the family includes children who are old enough to be aware of the break-down, then they are likely to be affected by it in some way. This section will briefly review the literature on post-relationship conflict, and the costs which it imposes upon adults, children, and society.
Although post-relationship conflict may occur without any legal manifestation, conflict arising from relationship break-down frequently results in legal disputes. A 2009 telephone survey conducted for the Ontario Civil Legal Needs (OCLN) Project asked low- and middle-class Ontarians which civil legal problems they had experienced in the previous three years.[112] “Family relationship problems” were reported by 12% of the respondents, and by 30% of all those who reported having any type of civil legal problem. Family relationship problems were, by a substantial margin, the type of civil legal problem most often experienced by low- and middle-class Ontarians. The prevalence of family problems was greater than the combined prevalence of the second- and third- most common civil problems.[113]
When family conflict does manifest itself in a legal form, it very often continues as such for extended periods of time. The OCLN telephone survey found that, among the respondents who had experienced a family relationship problem at any time in the previous three years, 44% reported that the problem was still unresolved at the time of the survey.[114] Three-quarters of those in this group stated that they had been trying to resolve the family relationship problem for a year or more.[115] The Peters filed applications and counter-applications in January and February of 2006, and the judgment in their case was not released until November of 2009 – almost three years later.
There is an extensive literature about the effects of divorce and/or dysfunctional family conflict on adults and children. A key conceptual issue in this literature is distinguishing the effects of conflict from the effects of the end of the relationship.[116] The scholarship at one point debated the impact of divorce itself on children, asking whether divorce is “bad” or “good” for children. The general consensus until perhaps the 1980s was that divorce was, at best, a necessary evil. While this line of inquiry continues in some quarters,[117] it now appears that conflict (especially violence) is the greater cause of mental health damage to children and adults, as opposed to relationship break-down itself. The end of the relationship may in fact have positive effects if it ends or alleviates conflict by putting some distance between the parties.
While children have substantial resilience to the effects of family break-down,[118] there is also little doubt among child development experts that exposure to serious inter-parental conflict can leave long-term scars.[119] For example, the judge who decided the Peters’ case identified a serious risk that the children might be
placed in the middle of much hostility between their parents who would be forced by the nature of the custodial arrangement to have more contact with each other than they have at the present time … the children are far more comfortable when their parents have less contact with each other.[120]
It is at least plausible that family conflict can reduce the ability of children to be productive and contributing members of society in the long run, although this is very difficult to quantify. If so, this is a significant social and economic cost. Post-relationship conflict is inevitable, but the extent and pathology of family conflict is influenced by the response to it.[121] In evaluating potential responses to family challenges, reducing conflict –especially inter-parental conflict to which children are exposed – must be one of the goals.
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