28 January 2013

Integrative Law: A day with Pauline Tesler

The BC Collaborative Roster Society has announced a day-long seminar presented by Pauline Tesler with the lofty title The Next Step: How Integrative Law is Reclaiming the Healing Heart of Legal Practice at the Wosk Centre for Dialogue in Vancouver. The Roster Society's announcement says this:
"A flood of neuroscience and cognitive/behavioral psychology research studies is yielding discoveries daily that challenge core beliefs about human consciousness and rationality imbedded in our legal institutions. This growing body of evidence carries revolutionary implications for our day to day work with clients, depicting a brain that is driven not by reason, but by emotion — a brain that has changed little in 20,000 years. The impact of these new understandings is already beginning to transform dispute resolution practice. Attend this cutting edge course introducing key concepts in integrative law and practical 'neuro-literacy'. Explore new perspectives on why we and our clients behave as we do during conflict and conflict resolution, and how we might do better. Experiment with understandings and practical techniques that can make our conflict resolution work more effective and satisfying for ourselves and our clients, and consider some ethical implications of these new understandings about how humans are wired. This workshop will provide a 'sampler' of major integrative law vectors, including brain science, neuroeconomics, and positive psychology, and will explore how the concepts of apology, forgiveness and restorative justice can be applied in collaborative practice."
Ms. Tesler is a California lawyer certified as a family law specialist, a fellow of the American Academy of Matrimonial Lawyers and one of the founders of the International Academy of Collaborative Professionals. The Roster Society promises a "lively, engaging, information-packed course [which] includes multimedia presentations, interactive exercises, and discussion."

The course runs from 9:00 to 4:30 on Monday 4 March 2013. The cost of registration is $200 for local members of the Roster Society and $150 for those who live outside the Lower Mainland, $200 for paralegals, articling students and junior lawyers, and a princely $400 for all others. For more information, drop a line to info@bccollaborativerostersociety.com.

19 January 2013

Supreme Court Announces Assize Project in Vancouver

Chief Justice Bauman has announced (PDF) the implementation of a pilot project to test an assize scheduling system for long civil chambers applications in the Supreme Court's Vancouver registry. The pilot project began on 7 January 2013. The pilot project is only available for cases that do not involve criminal law, family law or judicial reviews.

Chambers Applications

Every court day, masters and justices hear applications in chambers. Applications are requests for orders, usually temporary or short-term orders, that are made using affidavit evidence and are expected to take a relatively short time to hear, anywhere from five minutes to two days. Chambers is the courtroom where applications are heard.

Normally, someone who wants to make an application will just pick the court day that the application will be heard. Although some days are predictably busier than others, things usually work out pretty well; most of the time, there's enough time to at least get the shorter chambers applications heard. However, when an application is going to take a half an hour or more to be heard, things can get pretty hairy.

There are only four and a half hours in the normal court day. (Court starts at 10:00 and runs to the lunch break at 12:30, with a fifteen minute recess partway through. Court resumes at 2:00 and runs until 4:00, with another fifteen minute recess.) This is not a lot of time. Applications of less than an hour routinely chew through all of the morning, leaving a handful of applications left that might take half an hour, a whole hour or two hours to be heard. As a result, these longer applications often get bumped to another day. I never count on a two-hour application being heard in Vancouver on the day it's scheduled, and it's only an even chance than a one-hour application will go ahead. The situation is worse in New Westminster.

This is not the problem the new pilot project is meant to address.

When an application will take two hours or longer, the rules of court require that the application be scheduled with the court's trial coordinator. In theory this means that each application is assigned to a judge who will be free that day and has the time to hear it. In reality, some applications are assigned to a judge and others wind up being listed on the dreaded overflow list.

Being on the overflow list is not good. A judge may become available to hear your application that day or a judge may not; either way, you wind up cooling your heels in the registry for at least an hour or two on the off-chance that you'll be lucky enough to land a judge before giving up and going back to the office.

This is the problem the new pilot project is meant to address.

The Assize Project

An assize system is a way of scheduling hearings which works in blocks of one or two weeks. If someone wants an application to be heard, all they get to pick is the assize period in which it might be heard. At the beginning of the period, a judge or the trial coordinator will triage all the applications set for that period and sort them from most important to least important, with the most important applications getting priority and going first. Applications that can't be scheduled wait to see what happens with the other applications being heard in that period; if an application gets done faster than expected or is adjourned, the unscheduled application next in priority gets heard.

In theory, this is a more flexible way of using judicial time which accommodates applications that unexpectedly collapse, allows every hour a judge is available to be occupied with an application, and therefore gets more applications heard in the same amount of time.

However, as the announcement from the Chief Justice clearly indicates: "placing an application on the assize list does not guarantee that the application will be heard." The other major downside is that the people making the applications have to be available during the entire assize period because you never know when your application will be heard, if it gets heard at all.

Getting on the Assize List 

An application may be put on the assize list if all of these factors are met:
  1. The application will take between two hours and two days to be heard.
  2. All of the lawyers and anyone who is representing him- or herself agrees to the application being put on the assize list.
  3. Everyone is available for at least three of the five days in the assize period.
  4. The case does not involve family law or judicial reviews.
The assize periods available for booking are listed on the scheduling page of the Supreme Court's website.

I'm looking forward to seeing how the pilot project pans out. If it works, I expect the project will expand to family law cases, and although I will have a great deal of difficulty working my schedule to be available during an entire assize period, if the new system gets long applications heard more frequently than they are at present, I'm all for it.

17 January 2013

CLE Unleashes Family Law Act Training

The training opportunities for the coming into force of the new Family Law Act are about to get rolling. The Continuing Legal Education Society of British Columbia has taken an outstanding leadership role in packaging courses on the new legislation for lawyers, mediators, arbitrators and support staff. Here's some of what's going on over the next few months...

The Family Law Act: Everything You Always Wanted to Know But Were Afraid to Ask

This is a two-day practice-oriented course that will sink its teeth into the major areas of change under the new legislation — the division of property and debt, the care and control of children, and family violence and protection orders — each in a half-day slot, and address the changes to child support, spousal support and other issues in shorter segments in the last half-day.
Vancouver: January 31st, February 1st
VictoriaFebruary 7th, 8th 
KelownaFebruary 21st, 22nd
Early bird cost: $960 (students $485)

The New Family Law Act for Legal Support Staff

This is a one-day, comprehensive course designed for legal assistants and paralegals aimed at developing strategies to transition to the new legislation, including the revisions to the rules of court and court forms.
VictoriaFebruary 14th
Vancouver: February 18th
KelownaFebruary 19th
Early bird cost: $475 (students $225)

Family Violence Screening Training

This two-day course is designed to meet the practice requirements require by the Law Society and the Family Law Act Regulation for lawyers wishing to practice as parenting coordinators, family law mediators and family law arbitrators under the new act. The course will teach how to screen for family violence and how family violence can impact on different dispute resolution processes.
VancouverJanuary 21st, 22nd or January 24th, 25th
Cost: $1,100

Family Law Act Transition Guide

This book contains the Family Law Act annotated with commentary prepared by leading family law counsel and explanatory materials released by the Ministry of Justice, and includes a table of concordance between the old and new legislation. The first chapter provides an overview of the new act and is particularly well-written.

Cost: $195

16 January 2013

Families Change: A day with Professor Patrick Parkinson

The BC Parenting Coordinators Roster Society, in conjunction, I understand, with Collaborative Divorce Vancouver and Mediate BC, are hosting a seminar with the renowned family law expert Patrick Parkinson of the Sydney Law School at the University of Sydney. The talk is billed as:
"A full day educational opportunity for mental health professionals and lawyers to hear an internationally recognized expert on children and divorce, and to dialogue with a family law professional who brings a perspective of many years as a legal scholar, researcher, and family law reformer." 
Professor Parkinson has written extensively on various aspects of the enduring responsibility of parents to meet their children's needs after separation. He will be speaking on topics which include:
  • the results of a five-year longitudinal study on the impact of relocation;
  • what research says about the post separation arrangements for children under the age of four; and,
  • the myths, perceptions and realities of family law reform. 
The seminar will be held from 9:00am to 4:30pm on Friday 15 February 2013 in Vancouver at the Bill Reid Gallery of Northwest Coast Art. The early bird cost of registration is $201.60. 

For more information contact Phyllis Kenney at pcadmin@shaw.ca. A registration form will shortly be posted on the website of the BC Parenting Coordinators Roster Society at www.bcparentingcoordinators.com.

01 January 2013

Out With the Old, In With the New: Changes to plan for in 2013

The last few years have welcomed a range of important reforms affecting the practice of family law in British Columbia, including the new Supreme Court Family Rules, recalculated child support tables, the extension of the Notice to Mediate Regulation to family law matters and the expansion of the family law justice centre court model beyond Nanaimo. 2013 is going to be no different. In fact, in 2013 we are going to undergo reforms of a scope and magnitude not seen in the last thirty years. If the changes implemented in 2010, 2011 and 2012 were not your cup of tea, you are going to hate 2013. Read on.

The Family Law Act

The coming-into-force of the new Family Law Act will be the major event of 2013, no doubt about it. The new act will replace the Family Relations Act, which has been at the core of the law on domestic relations in British Columbia since 1972. 

Here are the highlights of the changes to expect on 18 March 2013:
  • Family violence: Under the new act, family violence will be a factor which must be considered when the court is making decisions about children. The court will also be able to make protection orders to protect children and adults who are at risk of family violence.
  • Parentage: We will have a complete code for determining a child's parentage, including when a child is conceived as a result of assisted reproduction. When assisted reproduction is used, a child may have more than two legal parents.
  • Children's best interests: The list of factors that parents and the court must consider when making decisions about children will grow significantly, and will include family violence and a presumption that children's views should heard.
  • Guardianship: The new act will give us a new definition of guardianship which takes us back in time to the old common law meaning of the term. Under the new act, subject to some exceptions, parents will usually be a child's guardians during their relationship and after separation. A guardian will be able to appoint a person to act as guardian in the event of his or her illness or death.
  • Parental responsibilities: The decisions a child's guardians must make about raising the child will be called parental responsibilities, and will cover everything from where the child goes to school and how the child's health care is managed to signing permission slips for field trips. Only guardians will have parental responsibilities.
  • Parenting time and contact: The time a guardian has with a child will be called parenting time. The time that someone who isn't a guardian has with a child will be called contact.
  • Child support: Under the new act, the child support duties of a stepparent will be secondary to those of a parent, and the amount that the stepparent must pay will be determined considering the length of time the child and stepparent lived together and the child's standard of living during that time. A person paying support may also be required to carry life insurance to secure his or her obligation.
  • Spousal support: People who have lived together for less than two years and have had a child together will be eligible for spousal support. Orders and agreements for spousal support may be reviewable. A person paying support may also be required to carry life insurance to secure his or her obligation.
  • Property and debt: The new act will let people keep the property they owned going into to the relationship but require them to share any property or debt acquired after the date of marriage or the date they began to live together, whichever was first, plus the increase in value of any property brought into the relationship. People will also be able to keep other kinds of property they acquire during the relationship, such as inheritances, court awards and insurance payments. The property and debt provisions of the new act will apply to married and unmarried spouses.
Some amendments are likely planned to fix the very small number of problems in the new legislation that were overlooked in the drafting process. However, the next session of the Legislative Assembly, which will probably not begin until February or so, is going to be somewhat preoccupied with matters leading to the mandatory provincial election in May. As a result, it is very unlikely that the Family Law Act will be amended until the fall sitting.

You can read more about the Family Law Act in my Family Law Act Information & Resources page or in the helpful website on the new act put together by the Ministry of Justice.

The Regulations to the Family Law Act

Two main regulations will come into effect with the Family Law Act, the Family Law Act Regulation and the Family Law Act Pension Regulation. There are a few dozen other regulations that will come into effect at the same time, but these are largely housekeeping regulations that change other regulations to refer to the Family Law Act rather than the Family Relations Act.

The Family Law Act Pension Regulation deals with, well, pensions. No surprises there.

The Family Law Act Regulation covers a number of important subjects including:
  • the roles and responsibilities of Family Justice Counsellors
  • the training and experience people will have to have to work as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators under the new act
  • adopting the federal Child Support Guidelines as the Guidelines for the Family Law Act and translating the new act for the purposes of those Guidelines
The Ministry of Justice has written a helpful guide to the Family Law Act Regulation (PDF). You can find links to the new regulations in PDF format in my post "Regulations to Family Law Act Published."

The Family Relations Act

The Family Relations Act, and the regulations made under the Family Relations Act, will all be repealed when the Family Law Act comes into force on 18 March 2013. The repealed regulations include the Child Support Guidelines Regulation, the Division of Pensions Regulation and the Family Relations Act Rules and Regulations Regulation.

The Divorce Act

I am not aware of any changes planned for the Divorce Act. However, it's worth saying that among the things that will be staying the same under the Divorce Act are:
  • Custody: The right to physical possession of a child and certain rights, almost like those of a guardian, to make decisions regarding the care and upbringing of the child.
  • Access: The time a person has with a child under an order or agreement.
  • Child support: The obligation of a spouse or stepparent to contribute to the costs of raising a child, as determined under the Child Support Guidelines.
  • Spousal support: The obligation of a spouse to contribute to the living expenses of the other spouse, where that spouse has demonstrated an entitlement to receive it.
As a result, when the Family Law Act comes into force, married spouses will be subject to two slightly different rules for determining child support and spousal support, and to two very different schemes for the care and control of children.

The Child Support Guidelines

I am not aware of any changes planned for the Child Support Guidelines. The Guidelines tables were last amended on 31 December 2011, which means that the next amendment is unlikely to occur prior to 2016.

The Rules of Court

Both the Supreme Court Family Rules and the Provincial Court (Family) Rules will be amended on 18 March 2013 to accommodate the Family Law Act. Both sets of rules will be updated to:
  • implement the new terminology used by the Family Law Act (for example, parental responsibilities, parenting time and parentage tests)
  • address the new concepts introduced in the act (for example, parenting coordination, conduct orders and protection orders)
  • address new processes established by the act (for example, the enforcement of orders and applications to enforce or set aside the determinations of parenting coordinators)
  • delete reference to concepts not carried forward by the act (for example, restraining orders, parental support and declarations of irreconcilability)
The changes to the Provincial Court rules were somewhat more extensive given their antiquity, however the Minister of Justice has promised a complete overhaul of the rules for sometime in 2013 or 2014.

I expect that further updates to both sets of rules will be announced in the next few months to address the requirements of s. 51(2) of the new act concerning applications to be appointed as a child's guardian:
"An applicant under subsection (1) (a) of this section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in section 37 [best interests of child] of this Act."
An overview of the changes can be found at the Ministry's website on the new legislation. I have also discussed the updates to the rules in my post "Family Law Act: Changes to Rules of Court."

The Limitation Act

A brand new Limitation Act will come into force on 1 June 2013. Among other things, the new act exempts arrears of child support and spousal support from any limitation period, which means that once arrears have accumulated under ss. 148 or 163 of the Family Law Act, or the equivalent sections of the Family Relations Act, they can always be enforced.

I have briefly discussed the new new act in my post "New Legislation Will End Limitation Period for Claims on Arrears of Support." The old Limitation Act can be found on the excellent website of the Queen's Printer.

Family Day

Thanks to Premier Clark's ambitious families first agenda, our province's first Family Day will be celebrated with a day off on the second Monday of February; this year, on 11 February 2013. Huzzah!

New Practice Standards for Lawyers

On 7 September 2012, the Law Society adopted new practice standards (PDF) for lawyers wishing to practice as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators when the new Family Law Act comes into force. The new standards are onerous but are, in my view, appropriately high.

People who are not lawyers and wish to practice as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators must meet the training requirements set out in the Family Law Act Regulation; lawyers who wish to practice in these areas must meet both the requirements of the regulation and the standards set by the Law Society.

New Code of Professional Conduct for Lawyers

The Law Society has implemented a new Code of Professional Conduct (PDF) to replace the old Professional Conduct Handbook, effective today. The code covers most aspects of lawyers' ethical obligations, including confidentiality, conflicts of interest and advertising, and is part of an effort to promote greater uniformity among the practice codes of the various provinces and territories.

I have discussed the new code in my post "New Code of Professional Conduct in Force in January." You can read more about the new code in the Law Society's Bencher's Bulletin newsletter.

Designated Paralegal Pilot Project

Beginning on 1 January 2013, the scope of practice allowed to paralegals under the Law Society's pilot project will expand to allow designated paralegals to appear in court.

In the Vancouver, New Westminster and Kamloops Supreme Court registries only, designated paralegals may apply for a wide variety of uncontested orders, largely concerning procedure and file management, and may make contested applications for the following orders:
  • compelling the production of documents
  • changing the place of an examination for discovery
  • the payment of child support where the children are below the age of majority and the payor's annual income is less than $150,000
In the Caribou/Northeast District and Surrey Provincial Court registries only, designated paralegals may apply for the same sort of uncontested orders and may make contested applications for the following orders:
  • compelling the production of documents
  • compelling the production of financial statements and financial documents
  • the payment of child support where the children are below the age of majority, the payor's annual income is less than $150,000 and the application does not involve situations of shared or split custody or a claim of undue hardship
For more information, see the paralegals page on the Law Society's website.

Provincial Sales Tax

Remember the PST? It's back on 1 April 2013. Lawyer's fees are subject to PST and GST; fees charged by lawyers acting as mediators are subject only to GST.

Happy new year.