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CANADA'S NO-FAULT DIVORCE:
CREATING HEARTACHE AND HARDSHIP

Previous Divorce Law

Prior to 1968, the divorce rate was relatively low in Canada, since the grounds for divorce were limited to adultery. As a result, individuals entering into marriage at that time regarded marriage as a permanent commitment for life and were obliged to work hard at making their marriage succeed, since extricating themselves from the marriage was extremely difficult. This was verified by a fascinating article in the National Post (November 5, 2006) in which three couples married over 60 years, were interviewed as to why their marriages had lasted. All the partners stated that their commitment to the marriage was the glue that kept them together despite the difficulties that had occurred which are inevitable in every marriage.

However, the 1960's in Canada and elsewhere was a time of sexual revolution, coupled with a disregard for all the old rules and understandings that had previously bonded society together. Marriage was not exempt from this new attitude. As a result, marriages based on commitment, duty, responsibility and sacrifice were regarded as outdated. It was argued that commitment should give way to the individual's right to self-fulfillment and happiness, regardless of the fact that separation and divorce may cause harm to others. Because of this new attitude towards marriage, political pressure to widen the Divorce Act began to build.

Divorce Amendment Act 1968

This political pressure finally resulted in an amendment to the Divorce Act in 1968, which permitted divorce on the grounds, not only of adultery, but also on the grounds of physical and/or mental cruelty or "marriage breakdown", indicated by the couple living apart for a three-year period. Even these grounds, however, proved too restrictive for many, since they required proof of "fault" by one of the partners, and proving "fault" in a court was not always easy.

Divorce Amendment Act 1986

The demand arose for still easier divorce laws, i.e., divorce to be granted on no grounds at all, but merely on the fact that the couple lived apart for a short period of time. Consequently, another amendment to the Divorce Act took place in 1986, which allowed divorce after only one year of separation. The new attitude towards marriage, that is, to casually walk away from it if one was "unhappy" in the marriage, was an important cultural shift that ignored the reality that breakdown of marriage creates severe and troubling problems, not just to the individuals themselves and their children, but also to society.

No-Fault Divorce is no Solution

It is significant that much of this pressure for the "no-fault" divorce amendment in 1986 came from feminist organizations which argued that no-fault divorce would easily free women from abusive husbands, ease the pain and suffering of the partners, as well as reduce the financial costs of the divorce. The reality, however, was that the pain and suffering caused by marital breakdown continued unabated under the amendment; only the lawyers and accountants actually benefited from the change in the divorce law because of their increased incomes that resulted from it. That is, the same old problems involved in marriage breakup continued: namely, conflict over custody and access and support payments, for which no-fault divorce provided no cure.

The divorce rate in Canada is as follows and indicates the large jump in numbers each time the divorce law was loosened:

Years	# of Divorces	Rates per 100,000 Pop.
1921	558	6.4
1941	2,462	21.4
1961	6,563	36.0
1968	11,343	54.8
1969	26,093	124.2
1981	67,671	271.8
1985	61,980	253.6
1986	78,304	298.8
1987	96,200	362.3
1990	80,998	295.8
1994	78,880	269.7
1995	77,636	262.2
1996	71,528	241.1
1997	67,408	222.6
1998	69,088	225
1999	70,910	232.5
2000	71,144	231.2
2001	71,110	236.9
2002	70,155	223.7
2003	70,828	223.7

In this regard, it is interesting to note that studies indicate that if couples in struggling marriages hang in and remain faithful to their spouses, more than 80% say that they have a good marriage five years later. That is, marriage like all human relationships rarely remains static, but changes according to circumstances and the various pressures experienced by the partners during the course of the marriage. Marriage frequently improves with time and perseverance on the part of both partners.

This is not to imply that there are never circumstances in which couples should separate. Severe personality defects, emotional and/or physical abuse, promiscuity, alcoholism, drug abuse etc., frequently make it impossible to sustain a marriage, no matter how committed the other partner may be to the relationship.

Detrimental Effects of Divorce on Society

1. Mother and Child Poverty

We frequently hear concerns about the large number of Canadian children living in poverty. Nobody mentions, however, the reason for this. Childhood poverty is largely the result of out of wedlock births, divorce and separations, which leave lone parents to raise the children. According to Statistics Canada 1996 (Statistics Canada Catalogue 13-207), the incidence of low income among families with children in 1996 was as follows:

Children in lone-parent families headed by women were almost five times more likely to be in a low-income situation than children in two-parent families. This pattern continued in 1997, when 56.0% of children in female, lone-parent families were in low income environments, compared with 12% of children in two parent families. The low-income rate for female lone-parent families has been consistently above 50% since the early 1980s. The answer to the problem of child poverty then is to strengthen marriage and keep families together. This will also increase a child's chances to succeed in life and make his/her growing years healthier and happier ones.

Fathers

Fathers suffer from no-fault divorce, not only because of the personal devastation experienced by the marriage falling apart, but also by the fact that custody, in most cases, is awarded to the mother. According to Statistic Canada, in 2002, custody was awarded to the wife in 49.5% of cases while fathers were awarded custody only in 8.5% of cases; in 41.8% of the cases, custody was awarded to the mother and father jointly. Under a joint custody arrangement, however, children do not necessarily spend equal amounts of their time with each parent, but the parents do at least supposedly have equal say over the children's upbringing.

The financial support guidelines, enforced by the courts, do not make a father's life any easier. Access by the father to his children, even court-ordered access, is all too frequently not honoured by the mother if she decides she wants the father out of her children's lives. Court ordered access is seldom enforced, often leaving the father to pay for support of children he seldom, if ever, sees. Sadly, the lack of a father's constant presence and influence is one of the reasons why many children in broken families fail to thrive on nearly every scale, educationally, emotionally and socially.

Detrimental Effect of No-Fault Divorce on Society

1. Marriages Weakened by No-fault Divorce

No-fault divorce has dramatically changed society's attitude toward the importance of marriage, which has led to the destabilization of society. That is, because the marital bond can now so easily be broken at the discretion of one partner, marriage is no longer regarded as a permanent commitment, but is allowed to continue only so long as the partners find it convenient. This results in the destabilization of society because marriage is the bedrock on which families are built and is the best environment for raising children to be stable and responsible citizens.

2. Trial Marriages Rise Due to Easy Divorce Laws

In the early part of the 20th century, very few couples lived together before marriage. But today a large number of people embark on a "trial marriage", to see if they are compatible. That is, it has become perfectly acceptable, indeed almost expected, that couples will live together before they marry. In fact, many couples today do not even bother with marriage at all: instead they move in together and have children without any true commitment to each other. It is a matter of indifference to them whether they have the "piece of paper" i.e., a formal marriage certificate, as the partners basically regard their relationships as transitory, shifting and changing.

According to a study in 1986 by William Axinn of the University of Chicago and Arland Thornton of the University of Michigan, couples who live together are less committed to the institution of marriage, and "cohabiting experiences significantly increase young peoples' acceptance of divorce." Axinn and Thornton cited studies that found couples who live together before marriage have divorce rates 50 to 100% higher than those who do not live together prior to marriage. "Living together," they stated, "may reinforce the idea that intimate relationships are fragile and temporary" and this might "reduce the expectation that marriage is a lifetime relationship."

In fact, legal marriage is the most stable of all co-habiting relationships. According to Statistics Canada, by the time children are 10 years old, 63% of children with parents living in a common-law union will have seen their parents separate, compared with only 14% of children whose parents were married and had not previously lived common-law.

Moreover, according to Statistics Canada's Survey on Violence Against Women released in November 1993, a woman living in a common-law relationship is four times more likely to be the subject of domestic violence from their partner than legally married women. In a study released in October 2006, Statistics Canada found that a woman living common-law is now five times more likely to suffer abuse than a woman who is married. Indeed, violence by a live-in boyfriend or girlfriend is the only category of abuse that has grown over the past few years.

3. Divorce Detrimental To Children

It is now beyond dispute that children thrive best when raised in a home with their biological parents because married mothers and fathers living under the same roof are much more likely to provide stable and secure environments in which their children can flourish.

It has been documented that the natural family structure of mother, father and children benefits nearly every aspect of children's well-being, including greater educational opportunities, better emotional and physical health, less substance abuse, lower incidences of early sexual activity for girls, and less delinquency for boys This was made clear in a study by Judith Wallerstein , which commenced in 1971 and continued for nearly 15 years, and remains the most enduring study of long-term effects on children of divorce, where severe forms of economic or emotional deprivation were not a factor. For example, five years after divorce, this study found that more than a third of the children experienced moderate to severe depression. Young adults from disrupted families were nearly twice as likely as those from intact families to receive psychological help. Family disruptions also affected school achievement. This has led to one of the great tragedies of our times, which are children failing in school, not because of a lack of intellectual capacity, but rather, a lack of emotional capacity. Much of the increased crime rate can also be attributed to the rise in the number of disrupted families. Boys from fatherless homes are significantly more likely to wind up in the juvenile justice system. Moreover, one of the long-term effects of divorce apparently emerges years later when young adults are trying to make their own decisions about marriage. According to the Wallerstein study, divorce makes it more difficult for young adults to make and commit themselves to new relationships. This may well be a contributing factor in the recent rise of common-law marriages to 14% of co-habiting arrangements, according to the 2003 census.

4. No-Fault Divorce Sets Stage for Same-sex Marriage

Pro-family researchers argue that those who support no-fault divorce must share some of the blame for today's debate over same-sex marriage.

For example, Dr. Stephen Baskerville, a professor of political science at Howard University in Washington, D.C. claims that the controversy over same-sex marriage has not arisen suddenly, but gradually over decades because of changes that have been going on regarding the family for at least 40 years, and in particular, no-fault divorce. He claims that no-fault divorce has debased the institution of marriage because it has led to increasingly casual attitudes toward marriage, which no longer serve as a barrier to promiscuity. This makes marriage more attractive to those who engage in the promiscuous homosexual lifestyle. Increasingly casual attitudes about unwed pregnancy, unmarried cohabitation, marital infidelity, and other sex outside marriage have helped to undermine the integrity of traditional marriage and family.

Society's Responsibilities

It is the business of society to protect vulnerable children and their families from harm. Divorce, when readily available, permits marriage partners to step away during the rough patches, which are inevitable in all marriages. Society must stress not so much Perfect Love, but Perfect Determination to stick the marriage out and make it work. In this regard, the state cannot persuade husbands and wives to accept the high obligation of marital chastity and commitment. But, it can exact a price from those who break the marriage contract by failing to meet lawful marital obligations. The state can, not from malice, but rather to protect children, enforce restraint on partners by making the marriage contract more difficult to break, by adopting stricter divorce laws.

Further, under the present Divorce Act, the Court cannot look to "fault" when determining the division of property and the setting of spousal support. This leaves the aggrieved, innocent party without a sense of closure or recognition of their commitment to the marriage, which was lacking in the other partner. Thus, it is perhaps time to consider the reinstatement of fault in divorce.

There are positive steps that can assist couples in their marriage journey. These include:

• · Ending no-fault divorce and making divorce more difficult to obtain by re-establishing the concept of "fault" in divorce actions;
  
  
• Establishing a national goal of reducing divorce, in particular, for couples with children, by embarking on a public campaign, informing the public of the risks of divorce and demonstrating the long-term benefits of marriage;
  
  
• Establishing community-based marriage counseling courses with low-cost fees;
  
  
• Making marriage counseling a tax deductible item, thereby making it more "respectable" and affordable;
  
  
• Required mandatory counseling for divorcing couples with children; such as is available now in the province of Alberta, to ensure the children are given full protection and that their parents are aware of what their children's needs will be because of the divorce.

The tragedy is not so much that marriages fail, but rather, that so little is done to help make marriages work in Canada.

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