Recurring Problem in Divorce: What to Do When the Parties Refuse to Listen to Reason?

We’ve all seen movies like The Break-Up: an embittered ex-couple starts a string of emotional attacks against each other that escalates out of control for comedic effect.  Most people are lucky enough to only see such antics on the silver screen, never dreaming people would act so cruel (or moronic) in real life.  But as those of us familiar with divorce proceedings know, there are judges who deal with these petty fights between soon-to-be-ex-spouses on a daily basis.

Last December, Ontario Superior Court Judge Joseph Quinn wrote up a 31-page opinion that lacked the objective tone one might expect from a judge who has presided on the bench for 15 years.  With the opening line, “Paging Dr. Freud, paging Dr. Freud,” Judge Quinn’s opinion has attracted a lot of attention, as it’s full of witty remarks, observational humor, and ridicule aimed at the vindictive couple.  What drove the judge to react this way?

Well, some of the highlights of the divorce included accusations like Catherine trying to run Larry over with her van after one of their son’s sporting events, “always a telltale sign that a husband and wife are drifting apart,” as Judge Quinn noted. Larry’s being fond of “flipping the bird” whenever he drove past Catherine’s house was unsurprising to Judge Quinn since “a finger is worth a thousand words and therefore, is particularly useful should one have a vocabulary of less than a thousand words.”

The result of the custody battle by the way?  Catherine was awarded full-custody, but Larry will only need to pay $1 (Canadian) per month in child support.

As amusing as all this sounds however, there are some troubling issues raised by this opinion.  For starters, Judge Quinn only awarded Catherine full custody of her 13-year-old daughter, because he determined that the girl had been irreparably poisoned against her father by Catherine.  This may seem terribly unfair to Larry, but any outcome of that decision would be unfair one way or another.  By awarding sole custody to the parent who alienates the child against the other parent, the judge rewards a bad deed.  But to rule the exact opposite would ignore the best interest of the child who hates or fears the other parent, even if that is only because she’s been brainwashed to think that.  It’s a problem that the justice system cannot resolve, perhaps not even through court-ordered therapy for the child.  Would it really help the situation to have a therapist explain to this girl that her mother lied to her to turn her against her father after the court has given her mother full custody?

Another problem with this case was the inability for mediation to work at all.  Judge Quinn claims it was even foolish of him to call a four-month hiatus during the trial in the hopes that mediation might be effective.  Recently in the United States, there has been a huge shift in the legal perception of divorce from the adversarial, “fault” nature to “no-fault” with increasing attempts to use alternative dispute resolution methods in place of litigating a divorce in court.  In California, mediation is mandatory for contested child custody and visitation matters.  However, when divorcing couples act the way Catherine and Larry do, they clearly want to keep the old-fashioned adversarial proceeding in order to “win” against their ex.  This is a huge waste of court time and money; the trial boils down to a mud-slinging match between the parties who feel the need to vent all the frustration of their failed marriage before a judge, whether it is relevant to the actual divorce proceeding or not.

But again, what is the best way to deal with this problem?  Mediation can be made mandatory in every state, but if the parties really want to fight in court, they’ll fight in court.  But on the other hand, over time, mandatory mediation might shift the public’s perception of divorce from “fault” to “no-fault”, and fewer divorcing couples would expect to even appear at trial.  I wouldn’t hold my breath on that one though.