28 May 2014

Unified Family Court on the Table Again?

Yesterday, an article appeared in both the Edmonton Journal and the Calgary Herald announcing that the interim premier of Alberta, Dave Hancock, supports the idea of a unified family court in the province. This is welcome news indeed.

Each province in Canada has two trial courts, a provincial court, established by the provincial government, and a superior court, established by the federal government under s. 96 of the Constitution Act, 1867. Although the superior courts are capable of dealing with every legal issue, the provincial courts only have the jurisdiction given to them by federal and provincial governments. As a result, family law matters can be heard in both the Provincial Court of British Columbia and in the Supreme Court of British Columbia, but only the Supreme Court can make orders about:
  • marriage, divorce and the validity of marriages,
  • the division of family property and family debt under the provincial Family Law Act,
  • the division of property under the common law,
  • family trusts, 
  • restraining orders about property and debt,
  • adoption, and
  • custody, access, child support and spousal support under the federal Divorce Act.
This leaves an overlapping jurisdiction between the Provincial Court and the Supreme Court under the Family Law Act on:
  • the recognition, appointment and removal of guardians,
  • parental responsibilities and parenting time,
  • contact,
  • child support and spousal support, and
  • protection orders.
But there are other important differences too. The rules and forms of the Supreme Court are far more complicated and far less accessible than those of the Provincial Court. Proceedings in the Provincial Court are free, while the Supreme Court charges filing fees as well as fees for each day of trial. There are Provincial Court buildings in most parts of the province; the Supreme Court only has buildings in major urban centres. 

As a result of this arrangement, people often start proceedings in the Provincial Court, only to have them eventually kicked over to the Supreme Court; the same family can be in both levels of court at the same time, pursuing similar or different legal issues; both courts can make orders on the same issues; and, the justice system is even more confusing than it is already. It is hardly surprising that most of the reports and studies looking at the family justice system have encouraged the creation of a single court, with one set of rules and one set of forms to handle with all family matters that must go before a judge for resolution.

In A New Justice System for Children and Families (PDF), published in 2005 by the Family Justice Reform Working Group of the Justice Review Task Force, the Working Group wrote that:
The system we make available to them today is complicated, intimidating and costs a great deal of money just when the family’s income is being stretched beyond its limits. Increasing numbers of people find themselves forced, by financial circumstances, to make their way without legal representation through a process designed for lawyers. A small number of these people go to trial on their own. Many settle, whether or not they have the information and support they need; some walk away, their conflict unresolved and possibly giving up what they need or were entitled to. 
Accordingly, it "strongly urged" a move towards a single court for family law matters. In Meaningful Change for Family Justice: Beyond Wise Words (PDF), the final report of the National Action Committee's Family Justice Working Group published in 2012, the Working Group observed that:
· there is a built-in tendency for adversarial process to polarize spouses and exacerbate conflict;
· parental conflict can be very harmful to children;
· conflict tends to protract process, which already tends to be complex, costly, lengthy and unpredictable;
· justice systems need to do a better job of providing integrated services and multidisciplinary responses to the many “non-legal” dimensions to issues that arise when families are restructuring; and
· the complexity of family breakdown and the relative inaccessibility of the courts results in many family law problems remaining unaddressed and unresolved.
At least partly as a result, two of the Working Group's recommendations are:
Recognizing that each jurisdiction would have its own version of the unified court model, to meet the needs of families and children in each jurisdiction, that the two levels of government cooperate in the completion of unified family courts for all of Canada.

That a unified family court retain the benefits of provincial family courts, including their distinctive and simplified procedures, and that it have its own simplified rules, forms and dispute resolution processes that are attuned to the distinctive needs and limited means of family law participants.
In support of these recommendations, the Working Group observed that:
Modern family law requires specialized knowledge, interpersonal skills and dispute resolution methods. A unified family court consists of judges, professionals and staff who have the experience, aptitude and commitment to work with families and children. A specialized court is best suited to handle the volume and complexity of the work, while at the same time experimenting and innovating with new services and methods of dispute resolution.
(The Canadian Bar Association's 2013 paper, Reaching Equal Justice Report (PDF), noted that "specialized courts, both by problem type and target group, have been demonstrated to contribute to access to justice and quality of decision making" and "generally enhance efficiency.")

Likewise, Alberta's 2001 report of the Unified Family Court Task Force recommended that:
... a unified family court should be established in Alberta expeditiously: 
· to exercise all family-law jurisdictions and powers  
· to provide essential services to people involved in family-law disputes. 
The unified family court should be a division of the Court of Queen's Bench of Alberta.
Interestingly, the government of the day actually accepted these recommendations (PDF), although only "in principle." (The Court of Queen's Bench is, by the way, the province's superior court.)

Anyhow, according to the article, Mr. Hancock, leader of the current government, told the Journal's editorial board:
"It would be more efficient if we had — I'm going to say this out loud and get in trouble — a unified family court, so that there was one court that dealt with all of the issues with respect to child, family, divorce, and property. ... It would be more effective and efficient, and it would be better justice."
Damn right it would. Family law is not like other species of civil law. Family law proceedings involve people in a continuing close relationship, not people whose business relationship terminated long ago. Family law proceedings don't seek remedies for things that happened in the past, they try to make the best possible arrangements for the family's future. Family law proceedings don't end once all appeals have been exhausted, they keep going until the children leave home and finish school. There are few hard-and-fast rules in family law, unlike other areas of the civil law; virtually all decisions are made based on the unique circumstances of the particular family before the court.

Having a specialized bench with the training, experience and skills to deal with the multidimensional — and multidisciplinary — nature of family law disputes, offering one-stop shopping for litigants, is an idea whose time has long since come and needs to be adopted in the remaining provinces without unified family courts, including Alberta and British Columbia. This is not the silver bullet to cure access to family justice. as the courts are only one small part of family justice and are not the sole means by which family law problems are resolved, but it would be a significant improvement from what we have now.

British Columbia established a unified family court for a brief period between 1974 and 1976. It's time to get back on the agendum.

Update: 2 June 2014

According to a recent article in the Calgary Herald, the chiefs of both the Alberta Court of Queen's Bench and the Alberta Provincial Court are interested in having fresh discussions about establishing a unified family court in the province to improve access to justice. The author of the article, Jason van Rassel, also notes that:
"Establishing a family division within Court of Queen's Bench could also allow judges with more experience in family law to specialize."
This is true, and very important. Family law cases cannot be treated like any other sort of civil case. They demand an extraordinary sensitivity and a knowledge that goes far beyond the legislation to appreciate the nuances of age-appropriate parenting plans, the psychology of separation and the effects of parental conflict on children. A specialist bench would be a boon to separating Albertans.

26 May 2014

The Middle Ages: Alive and Well in North Carolina

I get a fair amount of spam posted as comments to this blog, which is why I screen for comments. Some people, you see, think that the search engine ranking of their website will go up the more links to their website appear in other websites, and so they troll the web looking for places to leave comments, comments that are just a vehicle for a link to their website.

An unusual comment caught my eye today, posted by a bogus Google+ user on behalf of Diener Law of North Carolina:
In the event that you are considering a separation with your accomplice, your first step will be to contract a family law lawyer to help you through the procedure
Apart from the humour of separation with your accomplice, the link the spammer was trying to promote was to "stolenspouse.com" — and that's what got my attention.

As it turns out, North Carolina has kept on its books a couple of matrimonial torts from the antique common law, the torts of alienation of affection and criminal conversation, and Diener Law, which does the usual civil, personal injury and family law litigation, has made a specialty of prosecuting and defending these charming torts. stolenspouse.com is owned by Diener.

A "tort" is doing something that causes harm to someone else, which gives that person a right to sue you. Battery, hitting someone, is a tort. So is falsely imprisoning someone, slandering someone or running into someone with your car, or digging a hole in your front lawn that someone falls into.

A "matrimonial tort" is a tort that causes harm to someone by interfering with his or her marriage or right to be married. These torts are so delightfully old-fashioned, and misogynist, that most industrialized nations kicked them to the curb sometime in the 1960s and 1970s. Needless to say, I was tickled that a few of these yet survive in North America. Here are a few of my favourites from the good old days:
· A suit could be brought for jactitation of marriage, the false boasting of married status, which could result in a decree in the nature of an injunction restraining the respondent from making any further claim of marriage to the applicant.  
· An engaged person could sue for breach of promise to marry, which might lead to an award of damages in contract. 
· A husband could sue a third party for the ravishment of his wife, which could result in damages against a respondent who had taken her away thereafter. 
· A husband could sue a third party for enticing and harbouring his wife. 
· A suit could be brought for loss of consortium where the conduct of a third party, either by contract or by tort, caused the husband to lose the companionship and sexual services of his wife.
And this is one of the reasons why I love family law.

The tort of "alienation of affection," which Diener handles, is a species of loss of consortium. The case of Kungl v Schiefer from 1962 was one of the last such cases to be heard in Canada, and the husband's sued his wife's lover for alienating her affections from him, "thereby destroying the plaintiff’s home and marriage and causing the plaintiff to lose the enjoyment of the society, affection, comfort and services of his said wife." The claim resulted in an award of $10,000 at trial, on the basis that:
"The wife, while living under her husband’s roof, had entirely ceased to discharge any wifely function. She slept in her own room, locking the door. She refused to speak to her husband; and he was fully deprived of her consortium as if she lived in a separate building,"
however the case was ultimately thrown out by the Supreme Court of Canada. Here is Diener Law's charming, oddly pastoral description of the tort:
"North Carolina is one of a handful of states that recognize a 'heart balm' tort know as alienation of affection. It is called a 'heart balm' tort because its goal is to provide money damages for emotional harm. The North Carolina Supreme Court has gone so far as to recognize this cause of action for damages against one who wrongfully and maliciously alienates the affections of a spouse as a 'fundamental common law right'."
A suit could be brought against a third party who had intercourse with a spouse under the tort of "criminal conversation," Diener's other speciality, the tort of "debauching or seducing of a wife or husband," which was avaiable whether the spouse had consented to the debauchery or not. The Ontario Superior Court, in the 1921 decision of Maguire v Maguire, described this tort thusly:
"[T]he gist of the action of criminal conversation is not merely the loss of the society, comfort and assistance of the wife, but that it includes also the wrong done by the intolerable insult to which he has be subjected by the corruption of his wife."
Here's how Diener describes criminal conversation:
"Essentially, criminal conversation is adultery. Like alienation of affection, criminal conversation is referred to as a 'heart balm action' because it seeks to award money damages for emotion harm. This tort is based on the common law 'fundamental right to exclusive sexual intercourse between spouses'."
Imagine that. I suppose the real lesson here is that you'd better not have sex with someone else's spouse in North Carolina.

Sadly, suits for criminal conversation were forbidden by the British Columbia Family Relations Act of 1978 which, in its 1996 version, said at s. 123:
(1) An action must not be maintained for restitution of conjugal rights, loss of consortium, criminal conversation or jactitation of marriage. 
(2) An action must not be maintained for
(a) enticement of a spouse, 
(b) harbouring of a spouse, or 
(c) breach of promise of marriage.
I'd love to say that the loss of these quaintly sexist, and ever so conservative, torts is a bad thing, however the present no-fault system really works a lot better, costs people a lot less money and results in a lot less enmity and rancour. You've come a long way since the middle ages, baby.

Update: 28 May 2014

My colleague John Nelson wrote to ask if I'd ever researched the tort of seduction. I was about to reply that this was a criminal matter, not a tort, but I thought to check my copy of Eversley on Domestic Relations, 1926 edition.

Sure enough, a parent could sue for the seduction of a daughter, and action based on the old law of master and servant. A parent was entitle to sue the seducer when, as a result of the seduction, his or her daughter had become pregnant and the parent was thereby deprived of the child's services. Not much of a "heart balm" action.

25 May 2014

Supreme Court of Canada Issues Important Judgment on Mediation, Settlements and Confidentiality

A few weeks ago, the Supreme Court of Canada released its decision in Union Carbide Canada Inc. v Bombardier Inc. I normally don't spend a lot of time on cases other than family law cases, but this decision has important implications for mediation and collaborative settlement processes that need to be talked about.

Settlement Discussions and Confidentiality Agreements

Negotiations toward settlement happen fairly frequently in family law matters, in informal circumstances such as:
  • the parties or their lawyers talking on the phone or writing letters to each other and 
  • in-person meetings between the parties and their lawyers, called "four-way meetings,"
and in more formal settings where the parties sign a participation agreement like:
  • mediation and
  • collaborative settlement processes.
Most of the time, it is understood — and often expressly stated — that the content of the discussions is "off the record" and can't be used if the parties return to court. The point of this is to allow people to propose compromises to their position without being stuck with those compromises at trial. Here's an example:
Sally hires a lawyer and sues Amar for $100,000 as her share of the family property. Amar hires a lawyer, whose opinion is that Sally is entitled to a share of the family property, but that a fair amount would be $50,000. 
Sally and Amar could go to trial over the $50,000 difference, or they could try to negotiate a settlement. Most rational people try to negotiate a settlement, which is what Sally and Amar do. However, if settlement discussions fail, $50,000 might just be enough to fight over in court. 
Sally is convinced that the court will make an award of at least $90,000, but if she spends $30,000 on lawyer's fees and expenses for the trial, she's only going to net $60,000...  a mere $10,000 improvement over what Amar has proposed. (Even if she gets the full $100,000, which is unlikely since people usually handle lawsuits strategically and ask for more than they think they're likely to get, she'll still only gain $20,000 over Amar's offer after she's paid the cost of the trial.) However, if she can settle and avoid trial, she'll get to keep all the money she was going to have to spend on her lawyer.  
Sally, Amar and their lawyers agree to use a mediator to discuss settlement. Their lawyers confirm that all of the settlement discussions will be confidential and they sign a mediation agreement which contains a term to the same effect. Confidentiality is important, because Sally needs to be able to say "I'll settle for $80,000" in the discussions, but still claim $100,000 if she and Amar have to go to a trial, and she certainly doesn't want Amar telling the court that she was prepared to settle for $80,000. Likewise, Amar needs to be able to say "I'll settle for $70,000" but still argue that $50,000 is fair at trial.
With an agreement or understanding of confidentiality in place, each party is able to bargain toward settlement without worrying that the other side will use their settlement proposals or the information disclosed during mediation against them. In the example of Sally and Amar, their starting positions are $100,000 and $50,000, but Sally knows that really her claim is probably worth $90,000. Considering that the cost of trial is going to be $30,000, this means that her real range of settlement options is between $60,000 (the likely award minus trial costs) to $90,000 (the likely award), and so she has a lot of room to move if trial can be avoided — in fact, if Amar offers her $70,000, that might be a bit of a win! Without that confidentiality agreement, Sally and Amar won't be able to budge from their starting positions. As a result, confidentiality agreements can be terribly important. 

However, even without a specific agreement, there's still the common law principle of "settlement privilege." This principle is the idea behind letters marked "without prejudice," and operates to protect communications between parties as they try to settle their dispute from being shown to the court. ("Common law," in this context, means legal principles that are developed by the courts rather than being written down in a statute or regulation made by government.) I've written about the meaning of "without prejudice" in a previous post, "What's 'Without Prejudice' and What's Not."

Proving the Terms of Settlement

What the Union Carbide cases raises is this tricky question... what do you do if you reach a settlement during negotiations that one party later tries to back out of? Can you tell the court about a settlement was reached despite a confidentiality agreement and despite the principle of settlement privilege?

It is probably surprising to no one that problems like this happen all the time. In fact, family law lawyers have a name for it: buyer's remorse.

I have had cases where the other lawyer and I have reached a settlement through an exchange of correspondence, and the other lawyer has tried to back out of the deal and argue that a settlement was not reached. In those cases, I've proved the terms of our settlement through the letters we sent back and forth, and had the court make an order wrapping up the case on the terms of our deal.

I have also had cases where the other lawyer and I have reached a settlement at an examination for discovery which the other lawyer has tried to escape. In those cases, I've proved the terms of our settlement through affidavit evidence and, better yet, the transcript of the settlement if the court reporter was asked to record the settlement.

Interestingly, I never had opposing counsel raise the issue of settlement privilege. This is probably because of an exception to the principle — there's always an exception to every legal principle, and often one or more exceptions to the exception — which says that privilege will not apply to discussions and correspondence leading to settlement when it's necessary to prove the existence or terms of the settlement.

In formal processes like mediation and collaborative work, however, there is always a written agreement that everyone signs which, among other things, says that the content of the discussions will remain private and confidential, and cannot be used in court, regardless of settlement privilege. This is what happened in Union Carbide, and the issue the Supreme Court of Canada had to decide was whether the confidentiality agreement could prevent the settlement discussions from being raised in court. 

Union Carbide v Bombardier 

In fairness, though, the circumstances in this case were bit more complicated. The parties had reached a settlement through mediation, which one party said, a little while later, was a settlement of all of the court cases between them; the other party replied that the settlement was a settlement of just one of their court cases. When the first party applied to court to get an order on the terms of the settlement, the other party objected on the basis that some of the facts on which the first party was relying arose during the mediation process. There are, of course, other important facts at play that I won't get into.

This is how the court described the case (important bits in bold, as usual):
"[27] ... there are two questions to answer in this appeal. The first is whether a confidentiality clause in a private mediation contract can override the exception to the common law settlement privilege that enables parties to produce evidence of confidential communications in order to prove the existence or the scope of a settlement. The second question, which arises only if the answer to the first is yes, is whether the confidentiality clause at issue in the case at bar displaces that exception. If it does, the information referred to in the impugned paragraphs cannot be disclosed. If it does not, that information may be disclosed if it meets the criteria of the exception."
The court first looked at the issue of settlement privilege, which it defined this way (case references omitted):
"[31] Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. Sometimes called the 'without prejudice' rule, it enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation. This promotes honest and frank discussions between the parties, which can make it easier to reach a settlement ...
"[32] Encouraging settlements has been recognized as a priority in our overcrowded justice system, and settlement privilege has been adopted for that purpose. ...
"[34] Settlement privilege applies even in the absence of statutory provisions or contract clauses with respect to confidentiality, and parties do not have to use the words 'without prejudice' to invoke the privilege: 'What matters instead is the intent of the parties to settle the action ... Any negotiations undertaken with this purpose are inadmissible'. Furthermore, the privilege applies even after a settlement is reached. The 'content of successful negotiations' is therefore protected ..."
Next, the court looked at the exception to the principle of settlement privilege. After quoting from Sopinka's The Law of Evidence in Canada,
"If the negotiations are successful and result in a consensual agreement, then the communications may be tendered in proof of the settlement where the existence or interpretation of the agreement is itself in issue. Such communications form the offer and acceptance of a binding contract, and thus may be given in evidence to establish the existence of a settlement agreement."
the court summarized the principle thusly:
"[35] ... A communication that has led to a settlement will cease to be privileged if disclosing it is necessary in order to prove the existence or the scope of the settlement. Once the parties have agreed on a settlement, the general interest of promoting settlements requires that they be able to prove the terms of their agreement. Far from outweighing the policy in favour of promoting settlements, the reason for the disclosure — to prove the terms of a settlement — tends to further it. The rule makes sense because it serves the same purpose as the privilege itself: to promote settlements."
Having established that the concept of settlement privilege, which also applies to discussions made in the course of mediation, and its exception are bookends framing the overarching policy goal of promoting the settlement of legal disputes, the court then addressed whether the mediation agreement in the case operated to abridge the exception.

Here, by the way, is what the mediation agreement said about confidentiality:
2. Anything which transpires in the Mediation will be confidential. In this regard, and without limitation:
(a) Nothing which transpires in the Mediation will be alleged, referred to or sought to be put into evidence in any proceeding; 
(b) No statement made or document produced in the Mediation will become subject to discovery, compellable as evidence or admissible into evidence in any proceeding, as a result of having been made or produced in the Mediation; however, nothing will prohibit a party from using, in judicial or other proceedings, a document which has been divulged in the course of the Mediation and which it would otherwise be entitled to produce; 
(c) The recollections, documents and work product of the Mediator will be confidential and not subject to disclosure or compellable as evidence in any proceeding.
The court noted that people who engage in mediation seek confidentiality for more reasons that just protecting their position at trial. People may wish to maintain the privacy of their personal lives and business arrangements; protect information, and even the terms of settlement, from use and misuse by third parties; or keep information from discovery by government. As a result, there are additional interests involved in mediation, and, I infer, in other formal means of private settlement negotiation, that are worthy of protection:
"[45] The common law settlement privilege and confidentiality in the mediation context are often conflated. ... But ... confidentiality clauses in mediation agreements can also have different purposes. In most cases involving such clauses, the status of the common law settlement privilege will not arise, because the two protections generally serve the same purpose, namely to foster negotiations by encouraging parties to be honest and forthright in reaching a settlement without fear that the information they disclose will be used against them at a later date. However, ... settlement privilege and a confidentiality clause are not the same, and they may in some circumstances conflict. One is a rule of evidence, while the other is a binding agreement; they do not afford the same protection, nor are the consequences for breaching them necessarily the same."
But can you contract out of the exception to the settlement privilege principle by including a confidentiality clause in a mediation agreement, "thereby preventing parties from producing evidence of communications made in the mediation process in order to prove the terms of a settlement," even though such a result might "frustrate the broader purpose of promoting settlements in that it might prevent parties from enforcing the terms of settlements they have negotiated?"

The answer, in a nutshell, is sometimes.
"[51] ... It is open to contracting parties to create their own rules with respect to confidentiality that entirely displace the common law settlement privilege. This furthers both freedom of contract and the likelihood of settlement, two important public purposes. However, the mere fact of signing a mediation agreement that contains a confidentiality clause does not automatically displace the privilege and the exceptions to it. As I mentioned above, these protections do not have the same scope. For instance, settlement privilege applies to all communications that lead up to a settlement, even after a mediation session has concluded. It cannot be argued that parties who agree to confidentiality in respect of a mediation session thereby deprive themselves of the application of settlement privilege after the conclusion of the mediation session. The protection afforded by the privilege does not evaporate the moment the parties contract for confidentiality with respect to the mediation process, unless that is the contract’s intended effect."
However, if you intend your mediation agreement to suspend the exception to the settlement privilege principle, you need to be pretty blunt about it:
"[54] Where an agreement could have the effect of preventing the application of a recognized exception to settlement privilege, its terms must be clear. It cannot be presumed that parties who have contracted for greater confidentiality in order to foster frank communications and thereby promote a settlement also intended to displace an exception to settlement privilege that serves the same purpose of promoting a settlement. Parties are free to do this, but they must do so clearly. To avoid a dispute over the terms of a settlement, they may also choose to stipulate that, to be valid, any settlement agreed to in the mediation must be immediately put into writing. ... Such a stipulation would underscore the binding nature of any agreement reached in the course of the mediation process. ... 
"[67] I find that it is open to parties, in agreeing to confidentiality for a mediation process, to go so far as to limit their ability to prove the terms of any settlement. When any such limit is placed on the usual rule in this regard, however, it must be clear, on applying the principles of contractual interpretation of the relevant jurisdiction, that that is what the parties intended. ..."

Here's what the decision in this case boils down to for those involved in family law disputes.
· Settlement privilege normally protects discussions aimed toward settlement from disclosure to the court. 
· You can, however, talk about those discussions in court if it becomes necessary to prove the existence of the settlement you reached or the exact terms of your settlement. 
· Although this exception to the principle of settlement privilege is a good idea, you can contract out of the exception though a mediation agreement, so that the settlement discussions can never be disclosed, even to prove that an agreement was reached. 
· To effectively contract out of the exception, you must intend to do so and the contact needs to say that this is your intention. 
· Without having this express intention and including a statement to that effect in your mediation agreement, a confidentiality clause will not prevent you from talking about settlement discussions if necessary to prove the existence of the settlement or its terms.
Two things come from this.

Firstly, if you really intend that your settlement discussions can never be brought to the court's attention, you can do this through an agreement but you've got to be crystal clear that this is really what you mean to do; a boilerplate participation agreement generally won't do. Frankly, the exception to the settlement privilege principle serves a really important purpose, and I am having trouble imagining when you'd want to preclude it. Remember that the exception only lets you talk about your settlement discussions if necessary to prove the settlement you reached.

Second, this business about the effect of confidentiality clauses and the exception to the settlement privilege principle would apply to all formal means of dispute resolution that use participation agreements, including collaborative settlement processes as well as mediation.

My thanks to my friend and colleague Zara Suleman for bringing this interesting case to my attention.

16 May 2014

New Book for Parenting Coordinators and Referring Practitioners

The American Psychological Association has just published Parenting Coordination in Postseparation Disputes: A Comprehensive Guide for Practitioners, put together by editors Shirley Ann Higuchi and Stephen J. Lally. Ms Higuchi is a lawyer and the executive director of the APA's legal and regulatory affairs department; Dr. Lally is a professor of psychology at Argosy University and a clinical practitioner.

This book is an absolute must-read for anyone who works as a parenting coordinator or who is thinking of including parenting coordination as a part of their practice, and is something I would have love to have had when I first started working as a parenting coordinator six years ago. The book includes the work of many leaders in the development and practice of parenting coordination, including Joan Kelly, Robin Deutsch and Matthew Sullivan, and covers the basics of parenting coordination and more advanced practice issues in depth. Topics covered include:
  • parenting coordinators' training and core competencies,
  • establishing and maintaining a parenting coordination practice,
  • balancing parenting coordinators' caseloads,
  • ethical issues unique to parenting coordination,
  • managing risk,
  • including children in the parenting coordination process, and
  • parenting coordination in the context of family violence.
This book offers and excellent soup-to-nuts overview of parenting coordination and offers practical, pragmatic advice that both new and experienced parenting coordinators will find useful.

Order the book through the APA's website or through Amazon.

15 May 2014

Family Law Disputes and the Deductibility of Legal Fees

I was talking with a colleague the other day about how she manages the accounting side of her practice and it reminded me about the deductibility of legal fees for certain family law issues, and the importance for lawyers of tracking that portion of their fees if their clients wish to claim the deduction.

The basic idea with all income tax deductions is that they reduce the amount of income tax you pay by reducing your taxable income. Most employees have provincial and federal income taxes deducted off each paycheque automatically, so that tax they have to pay at the end of the year already paid. If your taxable income is reduced, then you've overpaid your taxes and you get a refund. Refunds are good. If you haven't overpaid your taxes, you'll at least have to pay less taxes.

Legal Costs in Family Law Disputes

Happily for people embroiled in family law disputes, the federal Income Tax Act lets you deduct some but not all of the money you're spending on your lawyer. The Canada Revenue Agency's Income Tax Interpretation Bulletin IT-99R5 sets out the basic rule, which I think comes from s. 8 of the act, that:
Except where there is a specific provision in the [Income Tax Act] dealing with legal or accounting fees ... legal and accounting fees are deductible only to the extent that they 
(a) are incurred for the purpose of gaining or producing income from a business or property, and 
(b) are not outlays of a capital nature.
Here are the rules applicable to family law matters:
¶ 4. "Legal costs to prosecute or to defend most tort, contract or other civil claims arising in the ordinary course of business will generally be deductible." (Torts include claims for damages for assault, battery, negligence, malicious prosecution and so on.) If you are successful, you can deduct your legal fees minus any legal costs you are awarded and actually receive. 
¶ 17. Legal costs of getting a divorceestablishing a right to spousal support under the Divorce Act or obtaining an increase in spousal support are not deductible.  
¶ 17. Legal costs of getting an order for child support are deductible. The costs of obtaining an increase in child support are not deductible. 
¶ 21. Payors' costs of addressing a claim for support are not deductible. 
¶ 18. Legal costs of defending against the reduction of support are deductible.  
¶ 21. Payors' costs of reducing support or terminating support are not deductible. 
¶ 18. Legal costs of enforcing an existing right to support are deductible. An existing right of child support or spousal support may come from a separation agreement, a court order or the legislation on family law matters. Child support is an existing right under the Divorce Act
¶ 20. However, legal expenses of getting a lump-sum payment other than for arrears are not deductible. 
¶ 21. Legal expenses relating to custody or access are not deductible.
Suggestions for Parties

If you have hired a lawyer to negotiate, apply for or enforce child support or to enforce an agreement or order for spousal support, you should tell your lawyer right away that you want to claim this deduction if your lawyer doesn't bring it up him- or herself. Your lawyer will need to write a letter to the CRA stating the amount of his or her fees that relate to those claims — you will file this letter with your income tax return — and it will be much easier for the lawyer to write the letter if the lawyer tracks his or her time on these issues right from the beginning, instead of having to review your file and make a guesstimate.

Practice Suggestions for Lawyers

If you are a lawyer representing or about to represent someone in negotiating, applying for or enforcing child support or in enforcing an agreement or order for spousal support, you should consider:
  1. Raising the issue of these tax deductions in your retainer letter so your client is aware of them from the start.
  2. Maintaining a separate yearly tally of your hours and disbursements incurred in relation to these issues, as you bill for your time or incur those expenses, so that you have an accurate record for your letter to the CRA. 
  3. Providing the client with an annual statement, in January or February, around the time T-slips are due, setting out the amount of your fees and disbursements related to these issues. 
You may wish to take these steps this regardless of whether the client mentions his or her wish to claim these deductions when you are retained; clients often ask for an accounting at tax time, and you do not want to put yourself to the trouble of a file review to calculate the client's deduction or to the risk of making a guesstimate to CRA.

Update: 7 July 2014

See the comments to this post for an important point raised by a reader which suggests that the CRA document referenced above may not reflect current CRA policy on the deductibility of legal fees. Stay tuned while I figure this out...

14 May 2014

"Hey, can I copy stuff from your blog?"

You bet.

Although the content of this blog — excluding quotes, extracts from government works, the contributions of guest columnists and so on — belongs to me, I have chosen to licence the contents of my blog for reuse and redistribution under a Creative Commons "Attribution-Noncommercial-Share Alike" licence. I believe that knowledge is meant to be shared, not hoarded or stashed away, and should be available to everyone with an interest.

Under the Creative Commons licence, which you'll find under the heading "Copyright and Licence to Reuse" in the right-hand column, you are free to:
1. share the content of my blog, including copying it and redistributing it however you like in whatever manner you like, and 
2. adapt the content of my blog by, for example, adding to, deleting from, remixing or otherwise transforming the content.
There's a catch, of course. Three of them. You:
3. must attribute me or my blog as the source of the material you've taken, provide a link to this blog if possible, and, if you've adapted the content in some way,
 make some effort to indicate the changes you've made, 
4. must not use use the material for commercial purposes, or for anything intended to make money for you or for someone else, and 
5. must share any adaptations you have made of the material on the same terms as this licence, and refrain from imposing any legal terms or technological measures intended to stop people from using the material as this licence allows.
The content of my wikibook, JP Boyd on Family Law, is provided on exactly the same terms.

Go ahead, copy this material, download it, print it out, cut-and-paste it as you like. It's here for the taking. Just please say where you got the material from, provide your work to others on the same terms and don't use my material for profit.

13 May 2014

The Dispute Resolution Spectrum

Access to justice has become a critical concern of academics, practitioners, courts and governments over the last decade or so, arguably culminating in the final report (PDF) of the national Action Committee on Access to Justice in Civil and Family Matters, convened at the urging of Canada's Chief Justice. Part of the national conversation on this issue is the idea that the term "family justice system" includes more than court processes, and ought to include all means of dispute resolution and perhaps even the multidisciplinary social services that support separating and separated families.

This prompted me to think in a more organized manner about the dispute resolution mechanisms we currently employ in family law matters, about the traits they share in common, about their costs and about their efficiencies. At one end of the spectrum of options is negotiation, which offers the greatest opportunity for personal choice and self-determination at the least cost, and at the other end is litigation, which offers the least room for personal choice and comes at the highest cost:

Loss of Self-Determination Dispute Resolution Extent of Intervention Flexibility of Process Resources
Probable Cost Inefficiency of Process
Negotiation Consensual, no intervention; locus of control internal to system Highly adaptable, no rules Some external supports, lawyers as needed ♦♦♦
Mediation Consensual, minimal intervention; locus of control internal with guidance provided by mediator Moderately adaptable, some rules Mediator, lawyers as needed, valuators as needed ♦♦ ♦♦
♦♦ Collaborative
Consensual, extensive intervention; locus of control internal with intensive guidance provided by team Highly adaptable, some rules, process-heavy Lawyers, coaches, financial experts as needed, child experts as needed ♦♦♦ ♦♦♦♦
♦♦♦ Arbitration Nonconsensual except for entry into process, extensive intervention; external locus of control Somewhat adaptable, many rules but may be determined by parties, process-heavy Arbitrator, lawyers as needed, valuators as needed, child experts as needed ♦♦♦
♦♦♦♦♦ Litigation Nonconsensual, extensive intervention; external locus of control Not adaptable, many rules, process-heavy Judge, court staff, lawyers as needed, valuators as needed, child experts as needed ♦♦♦♦♦ ♦♦♦♦♦

This led me to two observations, both of which may be trite:

1. Individuals' ability to determine the result of a dispute inversely correlates to the extent of the formal structure required by a dispute resolution process.

2. The amount of knowledge required to resolve a dispute roughly correlates to individuals' loss of autonomy in the dispute resolution process.

And that's my thought for the day.