30 September 2012

The Self-Represented Litigant's Bill of Rights ...and Responsibilities

Today I've launched a new page in this blog, The Self-Represented Litigant's Bill of Rights ...and Responsibilities, to which you'll find a link in the list at the upper right-hand portion of this page with a much briefer title, "The Litigant's Bill of Rights."

The purpose of the page is to describe the expectations self-represented persons ought to have of the people they meet on the way through a court proceeding: the court staff who assist in court processes, the lawyers who may act for the other parties, and the judges and masters who hear case conferences, applications and trials. The page also describes self-represented persons' obligations to learn about court processes and procedures and the law that applies to the proceeding they are involved in, and to treat court staff and judges with courtesy and respect.

This page is a bit of a work in progress. It represents only my views and opinions, and I fully expect that others will take a different perspective on things; in all likelihood I have put emphasis in the wrong place and overlooked things that should be discussed. I welcome your comments, questions and criticism.

This page is a contribution to the larger discussion I think we need to have about the functioning of the justice system in a tough economic climate where lawyers are becoming increasingly unaffordable and both the courts and legal aid programs have become distressingly understaffed and underfunded. As such, the page may be reused, republished and redistributed without restriction.

29 September 2012

Alberta Associate Chief Justice Releases Dissertation on Maverick Litigants

Associate Chief Justice Rooke of the Alberta Court of Queen's Bench has just published his decision in Meads v. Meads. This decision is remarkable and should be, I suggest, required reading for judges, lawyers, court administrators and court clerks across the country.

The judgment in Meads is a treatise, a manifesto and a cri de coeur addressing a certain sort of disaffected, maverick litigant which has been clogging up Canada's courts with contrived, pseudolegal arguments and irrational, histrionic demands for a number of years. Mr. Justice Rooke's judgment identifies, analyses and deconstructs the arguments of vexatious litigants variously known as Detaxers, Freemen or Freemen-on-the-Land, Sovereign Men or Sovereign Citizens, members of the Church of the Ecumenical Redemption International and Moorish Law adherents, and makes recommendations as to how the court should manage such litigants.

The common theme among these groups of litigants, who Mr. Justice Rooke collectively refers to as "Organized Pseudolegal Commercial Argument litigants," is that they believe themselves to be privy to some secret legal principles which allow them to evade the normal rules and regulations that bind every other member of civil society. These people — and I have encountered them in my practice — drape themselves in cobbled-together pseudolegal verbiage and concepts, such as describing themselves as "corporate entities" or "juristic persons," claiming copyright over their own names and spelling their names with add-on hyphens and colons (the husband in the case before Mr. Justice Rooke, for example, referred to himself as "::Dennis-Larry:Meads::"), and filing bogus pseudolegal documents festooned with gibberish and meaningless symbols, such as thumbprints, multicoloured ink, pompous phrases set in capital letters, stamps and references to inapplicable, foreign or repealed statutes. Mr. Justice Rooke describes a number of improbable hypotheses common to these litigants, including:
  1. that the Canada Revenue Agency has tricked persons into believing there is an obligation to pay tax;
  2. that various deficiencies in judicial oaths prohibit court action;
  3. that the relationship between the state and a person is a contract which one can opt out of;
  4. that legislation, the common-law, and court principles and procedures are trumped by divinely ordained rules and principles;
  5. that taxes and civil liabilities only attach to a “corporate name” and not physical persons;
  6. that the courts have no power over litigants until they surrender to the courts; 
  7. that state actors require the consent of persons, any state activity without consent is oppression; and,
  8. that public notaries possess a judge-like authority that displaces the authority of Canadian courts.
After an exhaustive review of the many cases across Canada dealing with these and other favourite arguments, Mr. Justice Rooke concludes that the theories of Organized Pseudolegal Commercial Argument litigants have never gained purchase in a Canadian court.

Mr. Justice Rooke goes on to point out certain common linguistic, documentary, analytic and behavioural hallmarks of these litigants, and suggests a number of procedural devices that can be employed by the courts to manage and curb their excesses.

Court Staff:
  1. Reject documents and materials that do not conform to established standards.
  2. Mark non-compliant materials as "received" rather than "filed."
  3. Forward potentially non-compliant materials to a judicial officer for review before filing.
The Judiciary:
  1. Strike actions, applications and defences that are frivolous or vexatious.
  2. Award punitive damages where the litigant's conduct is high-handed, abusive or oppressive.
  3. Award elevated costs in favour of opposing parties to off-set their increases legal expenses resulting from the litigant's conduct.
  4. Make orders that the litigant post security for costs at an early stage of the litigation.
  5. Adopt tight approach to case management and assign a single judge to manage the case through to trial.
  6. Consider whether the character and nature of the litigation warrants a finding that the litigant is frivolous and vexatious and should be barred from commencing further proceedings without leave.
  7. Restrict who may appear as a representative or agent of the litigant.
It isn't particularly difficult to extrapolate from these comments principles of use to lawyers and self-represented parties dealing with such litigants. May I suggest:

  1. Apply to the chief justice for an order appointing a case management judge early on.
  2. Consider whether the litigant's claim or defence discloses a legitimate cause of action or defence and apply to strike if it does not.
  3. Do not waste your client's money replying to nonsensical pleading or applications in the same voluminous manner as the litigant's material, consider applying for directions.
  4. Consider applying for security for costs, bearing in mind the generally high threshold that must be reached before such orders will be made. Search for other reported cases involving the same litigant.
  5. Carefully scrutinize the background and motivations of persons seeking approval to appear as a representative or agent, and object where the person is going to exacerbate the situation.
Finally, the concluding remarks of Mr. Justice Rooke deserve repetition:
[71] Dealing with an OPCA litigant is difficult and frustrating. The fact that they are almost always self-represented adds to the challenge. What is worse is if a [OPCA proselytizer] is directly involved. I anticipate most judges will not tolerate representation by these persons ... particularly if the judge understands the nature of the [proselytizer] and his activities. ... 
[72] Timely and cost-effective resolution of these disputes requires that an action be pared down to its legitimate substance. That can be achieved by applications to strike irrelevant submissions and pleadings, and to categorize materials as irrelevant except for the purpose of costs, vexatious litigation and litigant status, and contempt and criminal sanction.

19 September 2012

The Cleavers Are Moving Out: StatsCan reports on the changing face of the Canadian family

Statistics Canada has published the results of the 2011 Census, and its analysis of the changing makeup of the Canadian family is worthy of note. As CBC's article on the analysis pithily notes, "the nuclear family is no longer the norm in Canada."

The newsbite summary of Statistics Canada's conclusions says this:
  • Married-couple families were the predominant family structure in 2011, at 67.0%. For the first time, there were more common-law-couple families in 2011, 16.7%, than lone-parent families, 16.3%.
  • The 2011 Census of Population counted 64,575 same-sex couples. In 2011, 32.5% of same-sex couples were married, nearly double the 2006 share. The 2006 to 2011 period marks the first five-year period during which same-sex couples could legally marry, following the legalization of same-sex marriage for all of Canada in July, 2005.
  • Stepfamilies were counted for the first time in the 2011 Census of Population, providing a more detailed portrait of Canadian families. There were 464,335 stepfamilies in 2011, or 12.6% of couple families with children aged 24 and under.
  • For the first time, there were more one-person households in 2011, 27.6%, than couple households with children aged 24 and under, 26.5%.

16 September 2012

Supreme Court Releases Decision on the Naming of Children

On Friday, the Supreme Court released its decision in Landa-McAuliffe v. Boland which addresses, among other things, the factors the court should take into account when being asked to name a child. The factual background behind this aspect of the case is neatly summarized by the court itself:
[14] Briefly, Ms. Boland changed [the child's] name from “____ ____ ____ Landa” to “____ ____ ____ Boland Landa” in order to include her own surname. She appears to have sought this change under s. 4 of the Name Act, R.S.B.C. 1996, c. 328. That section normally requires consent, although there is provision to waive consent under section 4(6) due to exceptional circumstances. 
[15] Mr. Landa wants a hyphenated surname “Landa-Boland” with his name first. Ms. Boland wants the surname “Boland-Landa” with her name first. Ms. Boland is the primary caregiver of the child.
Yes, people really do go to court with problems like this.

In analyzing the father's request, the court firstly concludes that it has parens patriae jurisdiction to make decisions about the naming of children. Parens patriae means "parent of the country" and refers to the supreme court's inherent jurisdiction to make decisions respecting people under a legal disability, although the phrase is most commonly used in reference to children.

Next, the court references the considerations set out in a 1985 case from Alberta, Wintemute v. O’Sullivan, to be taken into account when the court is asked to make decisions about naming children:
  1. the welfare of the child;
  2. the short and long term effects of a change in the child’s surname;
  3. any embarrassment the child might suffer if the surname is different from that of the custodial parent;
  4. the potential for confusion of identity;
  5. the effect of change of name on the child; and,
  6. the effect of frequent or random changes of name.
The court then cites a 2010 decision from New Brunswick, L.M.D. v. J.R.S., which addressed the issue of hyphenated surnames:
[35] ... including the name of both parents is consistent with a child’s best interests. This is not a random change of name. Nor is it a request without a purpose. In the absence of any evidence to suggest that [the child's] existing surname – the name of only one parent – is in his best interest or otherwise preferable in the circumstances, a surname that includes the names of both parents cannot be rejected simply on the basis that the status quo should prevail. Not only is there no reason why the name should not change but also, in the circumstances of [the child], given his young age (he was still three when the initial application was filed) and close relationship with both parents, he will benefit from a name that reflects his connection to two separate families.
Finally, the court takes some guidance from s. 4.1 of the Vital Statistics Act, the provincial law that deals with, among other things, the registration and naming of newborn children. Section 4.1 deals with declarations of parentage, and subsection (2) provides that when the court is also making an order about the child's name, the court must choose either:
  1. the surname of either parent; or,
  2. a surname consisting of both parents' surnames hyphenated or combined in alphabetical order.
The court then, quite sensibly, concludes that the child should have the hyphenated surname Boland-Landa, for these reasons:
[19] I do not consider there to be any factors, singly or collectively, preponderantly favouring that either parents name go first in the present case. ... 
[21] ... the parties seem to be in agreement, a hyphenated last name would promote the child and his collaterals indentifying with both parents. 
[22] In choosing the order of the last names here as “Boland-Landa” on the basis of alphabetization, the decision would be consistent with provincial legislation and does not favour either parent. It is a neutral choice. 
[23] The name also has the advantage of being least disruptive to the child, as it is essentially the same name that the child has borne for the past several years. In my opinion the order of the last names alphabetically hyphenated promotes [the child's] best interests.
For those of you who are curious, the general rules for the naming of children by parents are set out at s. 4 of the Vital Statistics Act:
  1. if only one parent registers the birth, the child's surname is the name chosen by that parent, which could be any name;
  2. if two parents register the birth, the surname is whatever name they agree on;
  3. if the parents cannot agree on the name, the surname must be either the parents' surname if they have the same surname, or, if they have different surnames, the parents' surnames either combined or hyphenated in alphabetical order; and,
  4. a hyphenated surname must not consist of more than two names, even if one of the parents has a hyphenated surname.
The chief executive office of the Vital Statistics Agency retains discretion about the registration of names under s. 9 of the act, and may refuse to register a name if the name that a parent wishes to give to a child:
  1. might cause mistake or confusion,
  2. might cause embarrassment to the child;
  3. is sought for an improper purpose; or,
  4. "is, on any other ground, objectionable."
That last factor is pretty broad. I'm not sure that Harper Seven, Blue Ivy Carter, Zuma Nesta Rock, Dweezil or Moon Unit would have made it through in British Columbia.

13 September 2012

Family Law Act: Law Society Task Force Releases Practice Requirements, Government Announces No Fall Sitting

Proposed Practice Requirements 

On Friday 7 September 2012, the Law Society's Family Law Task Force released its recommendations (PDF) on the qualifications lawyers should be required to have before being able to practice as family law arbitrators, family law mediators and parenting coordinators as provided under the new Family Law Act. The proposed qualifications are rigourous, and, I suspect, appropriately so.

Family Law Arbitrators

The Task Force recommends that lawyers practicing as family law arbitrators have 10 years of practice or experience as a judge or master, sufficient knowledge and skills to arbitrate family law matters in a competent manner, 40 hours of training in arbitration, 40 hours of training in mediation and 14 hours of training in family violence. Arbitrators should also be required to take at least six hours of continuing professional development per year in dispute resolution skills training and/or theory.

Family Law Mediators

Lawyers practicing as family law arbitrators should have sufficient knowledge and skills to mediate family law matters in a competent manner, 80 hours of training in mediation and 14 hours of training in family violence. Mediators should also be required to take at least six hours of continuing professional development per year in dispute resolution skills training and/or theory.

Parenting Coordinators

Lawyers practicing as family law arbitrators should have 10 years of practice or experience as a judge or master, sufficient knowledge and skills to act as a parenting coordinator in a competent manner, 40 hours of training in parenting coordination, 40 hours of training in arbitration, 80 hours of training in mediation and 14 hours of training in family violence. Parenting coordinators should also be required to take at least six hours of continuing professional development per year in dispute resolution skills training and/or theory.

The recommendations of the Task Force must be approved by the Benchers of the Law Society.

Fall Sitting

The CBC reports House Leader and former Attorney General Mike de Jong as saying that the provincial legislature will not sit this fall. As a result, no amendments to the Family Law Act can be tabled until the spring sitting in 2013; the act is scheduled to come into force on 18 March 2013.

Update: 17 September 2012

According to a newsletter distributed by the Law Society today, the recommendations of the Family Law Task Force were approved by the benchers at their meeting on 7 September 2012. Lawyers currently practicing as mediators, arbitrators and parenting coordinators are advised to look at the grandfathering provisions of the recommendations.

07 September 2012

Access Pro Bono Drop-In Legal Advice Events

Access Pro Bono's annual open-air legal advice event is running today in Vancouver from 10:00am to 5:00pm at Victory Square Park, at 200 West Hastings Street. The free event is intended to facilitate access to justice for low- and modest-income people, including the homeless, on all legal issues and to raise money to support the organization's programs through pledges raised by the volunteer lawyers.

The even repeats in New Westminster from 10:00am to 2:00pm on 11 September 2012 at Hyack Square, in Kelowna from 10:00am to 2:00pm on 14 September 2012 in the City Park, and in Victoria from 10:00am to 2:00pm on 18 September 2012 at Centennial Square.

Access Pro Bono raised over $50,000 for pro bono programming in British Columbia last year, and hopes to raise $60,000 this year. For more information visit the event website.

04 September 2012

Trio Tie the Knot in Brazil

CNN reports that a public notary in Brazil has "set off a firestorm" by granting a civil union registration to a trio composed of one man and two women. According to the article, the three live together and love one another like persons in any other cohabiting relationship, and granting the registration will give the trio the legal benefits of marriage and recognition as a family unit.

This raises of course, a question that has been waiting to be raised in British Columbia for some time now. The Family Relations Act defines "spouse" as including married spouses and persons for have "lived with another person in a marriage-like relationship for a period of at least 2 years." Nothing in this definition says that you can't be living with more than one person in a marriage-like relationship, although I think you would have to read the definition as establishing separate spousal relationships among the parties to the relationship. In other words, A would be in a spousal relationship with B while simultaneously being a spousal relationship with C, and B and C would have a spousal relationship of their own. The definition of spouse in the Family Law Act also allows for this eventuality.

The point, of course, is that being in a spousal relationship provides certain legal entitlements that arise on the breakdown of that relationship. Under the Family Relations Act these involve spousal support and obligations in respect of stepchildren. Under the Family Law Act, unmarried spouses will also be entitled to share in family property.

My thanks to my friend and colleague Agnes Huang for sharing the CNN article with me.