Association de mediation familiale du Quebec v. Bouvier

The Supreme Court of Canada released their Association de mediation familiale du Quebec v. Bouvier , 2021 SCC 54 decision on December 17, 2021. The SCC looked at whether there is an exception to the settlement privilege, allowing for the existence or scope of a settlement to be proven in the context of a family mediation in Quebec. The SCC has posted a Case in Brief summarizing the facts and main issue. 

Quebec has a unique set of rules related to how family mediation works in their province. Still, this decision has implications for all family law consensual dispute resolution professionals, as they consider the terms of any agreements made entering into a mediation regarding what may or may not be disclosed or relied on afterwards. 

The decision also highlights the usefulness of the terms in a Collaborative Process's Participation Agreement, which makes what information and documents may be disclosed at different stages of the process clear and what must happen before the parties can rely on any agreements made within the Collaborative Process.

Unbundling Your Practice: Examples Across North America

The CDV was lucky enough to have Forrest “Woody” Mosten conduct a two-day online training titled Unbundling Your Practice for Lawyers and Consensual Dispute Resolution Professionals: To better serve your clietns and increase profitability in January 2021. For a limited time, the course is available as a rebroadcast for $175 USD (approximately $225 Canadian). Learn more and register here.

During the training, Woody provided a number of examples of different unbundling models that professionals use in their practices around North America. Here are some examples: 

• In Des Moines, Iowa, The Law Shop’s lawyers have created a successful model offering flat fee case evaluations and unbundled services, which they refer to as “customized client services.” 

• Brian Burke in Santa Barbara, CA exclusively offers client education sessions and referrals. 

• In Victoria, BC and Duncan BC, Alinea Legal Coaching offer services such as flat fee strategy packages, agreement coaching packages and negotiation support, as well as ‘phone-a-coach’, ‘email-a-coach’ and ‘meet-a-coach’ options.

• In Toronto, Ontario, Lisa Eisen offers limited scope services and legal coaching through her firm, Family Law: A La Carte 

• In Northern California, Hello Divorce offers flat fees and unbundled options 

• Levitt Quinn in Los Angeles, CA is a non-profit family law centre that provides affordable legal services based on a sliding scale. 

• Legal Grind in Santa Monica, CA is a coffee shop where people can receive legal advice and listen to presentations from various legal professionals. 

• Gevutrz Menache & Howe in Portland, OR is a large family law firm that provides limited scope work. 

• In Toronto, Ontario, Joel Miller offers coaching and unbundled services through The Family Law Coach. 

• Maryland’s MD FamilyLawer.com offers online, fixed fee legal services 

• An Atlanta, GA firm operated a “Justice Café” that offered walk-in, affordable legal consultations.

• In Toronto, Ontario, multidisciplinary teams previously offered information sessions under the name, The Neutral Zone.

Lawyers in British Columbia can use the Family Law Unbundling Toolkit’s resources and templates to build their unbundling practice. More information is available on the Law Society of BC’s website and and the People’s Law School’s Unbundled Legal Services website. There is a Facebook group for lawyers who offer unbundling services.

Posted by: Jenny Woodruff,  Collaborative Family Lawyer

Do Adult Children need a Child Specialist? 5 Key Considerations

By Jamila Nazerali Hilborn MA, RCC, Child Specialist & Co-Parenting/Divorce Coach

 

Since the hit of COVID-19 there has been a surge in my practice in working with adults aged 18-28 as a Child Specialist and Psychotherapist. According to Hartford Healthcare’s recent census, “The pandemic...affects people ages 18 to 29 more, with 42 percent reporting anxiety and 36 percent depression. The second most-affected age group was people 30 to 39, with 34 percent reporting anxiety and 28 percent depression.” Many of them have uprooted their lives to move back home. Reasons for moving back home include job loss, universities transferring to online format, covid-19 restrictions, or the need to suspend their “gap year” of travel. At a time when many of them are trying to navigate love interests, build careers, and create reliable networks these clients have not only had their lives suspended but they have profoundly regressed. Many have described their experience of being forced to “move back” whilst also having to “move back” into their old roles, schedules, and family traditions. Not only are they going “back and forth” between two homes, but now they are transitioning with significant others and pets. Some have explained that during birthdays and holidays they’ve been expected to follow past schedules. For a significant amount of these clients, the new lives that they have built have allowed them to explore who they are beyond their two-home family under one roof. The impact of all of this would seem that the pandemic has created a long detour in establishing their own independence and securing long-term healthy boundaries.

 

For the adult children that are in the initial stages of parents restructuring their homes, there is great confusion. This is an age group that is already significantly overlooked and is commonly referred to as the forgotten demographic. In a longitudinal study done by Watterstein et al. (2000) an adult child explains, “It’s sort of a permanent identity, like being adopted or something like that. I guess you might say our parents’ divorce was the formative event in our lives. It explains why I feel the way I do. The divorce is a permanent part of me in some ways I’ll never get over it” (Children of Divorce at page 291).  How then are these adult children expected to “get over it” when the pandemic has shackled them “back in it”? It would seem that the role of the child specialist in the case of adult children has never been more valuable. They no longer have a choice and yet where is their voice?

 

Whether your family is in transition or has been restructured into two homes, here are five things to consider:

1. They are still your children: Although adult children are able to understand much more than minors, it can be tempting for parents to overshare or lean on them. It is important to keep boundaries and to limit their involvement, while maintaining a parent-child relationship.

2.  Understand that they have feelings too and will also need support: Many parents assume that older children will not feel torn, guilty, or that the rupture of the marriage is not their fault. Surprisingly, adult children share similar feelings to younger children. The adult children that have had to move back are not only reverting back into old patterns, but they are incredibly flooded and haunted by the “ghosts of their past”. Furthermore, they are typically more skilled at hiding their feelings, which make them a target for being easily forgotten. Try to validate their emotions, and hold space for empathy.


3. Recoupling and family blending does impact adult children: Whether they live at home, have to move back, or temporarily visit. Family restructuring does change their sense of belonging and understanding of home or their family of origin.


4.  Relationship repair can be more challenging: Encouraged visits or traditional ways of repair are no longer applicable to this demographic. This can make rebuilding the child-parent relationship much more difficult. Further, adult children feel more responsible to find appropriate solutions, and often take on parenting roles.


5.  Your co-parenting relationship is still important: Many parents assume that they will not have to make the same efforts in creating a cohesive co-parenting relationship with their ex-spouse since there is usually no formal parenting plan with adult children. However, adult children need to feel that their parents are still a cohesive team with a united front regardless of how old they are. Not only is your co-parenting relationship valuable, but your co-grandparenting relationship will also influence a legacy of generations to come.

Sources:

“These Age Groups Most Affected by COVD-Related Depression, Anxiety,” Hartford HealthCare article


The Unexpected Legacy of Divorce: A 25 Year Landmark Study by Julia M. Lewis and Sandra Blakeslee, reprinted edition 2001 

Divorce Act amendments coming into force on March 1, 2021

The Divorce Act amendments from 2019 are finally coming into force on March 1, 2021, after being delayed for almost a year because of the pandemic.

The Department of Justice's (DOJ) "Divorce Act Changes Explained" compares the previous version of the Divorce Act to the amended version.  The DOJ has compiled resources for lawyers and families. 

The amendments are mainly focused on parenting provisions.  They include references to parenting plans, which have long been a component of Separation Agreements created through the Collaborative process. 

Jenny Woodruff, Collaborative Family Lawyer

Collaborative divorce and online dispute resolution: How COVID-19 is changing the way we settle disputes

By Marcus Sixta, Collaborative Divorce Lawyer, Mediator

COVID-19 has laid bare the many vulnerabilities of our justice system. In the first few months of the pandemic, courts were effectively shut down, except for the most urgent matters. For family law and divorce cases, this meant that many hearings and trials were adjourned and claimants had no access to the courts to get an order or judgment. There is still a massive backlog of family law cases in our court system today which will likely last for some time.

However, rising out of this crisis is a new level of appreciation for alternative dispute resolution processes, like Collaborative divorce, which can be conducted online and remotely. On February 17, 2021, the Canadian Bar Association released a report titled No Turning Back: CBA Task Force Report on Justice Issues Arising From Covid-19. This report includes the following recommendations regarding dispute resolution:

• Justice system partners (including groups representing justice seeking individuals, court and tribunal administrators, bar representatives etc.) should establish a working group dedicated to exploring how to effectively triage matters that are more amenable to early resolution and matters that better lend themselves to remote proceedings.

• The working group should explore which areas of law are potentially suited for ODR-type platforms and how to integrate all these matters into the public system.

Online dispute resolution (ODR) is a process of resolving disputes online and can include mediation and Collaborative law. A videoconference platform with screen sharing technology is used so that all the participants can see each other and share documents. Also, these platforms, like Zoom, include the option to create breakout rooms so that participants can meet privately with their lawyers before coming back together as a group.

In my practice, I have seen that the majority of family law cases do not need court intervention. Most of them in fact are resolved outside of court, but for some reason there are those who are still resistant to alternative dispute resolution processes like Collaborative law and mediation. However, changes to the justice system brought on by COVID-19 may be forcing them to accept a new reality.

In 2020, when COVID-19 had closed the doors to the court system, many people had no other choice but to resolve their family law disputes in mediation or through a Collaborative process because these processes can be utilized fully through online platforms. As a result, some people (including some family lawyers) who would never have considered mediation or Collaborative divorce gave it a try. Moreover, I have witnessed judges in court being far more assertive with people and very firmly telling them to attempt to resolve their matters outside of court because court resources are so limited now.  

My experience with ODR processes like Collaborative divorce and mediation over the last year has convinced me that for many people this process is more client centered and convenient. Rather than needing to travel to a lawyer’s office, clients who may have long commutes can attend meetings at home. For people living in small communities with limited legal resources, ODR opens up the possibility of working with Collaborative lawyers and mediators in other cities. Individuals with mobility limitations are also benefiting from ODR as it means they can access dispute resolution services wherever is convenient for them.

The justice system is slow to adapt to change, but COVID-19 has forced it adapt to the times by advancing technologically and further embracing alternative dispute resolution processes. It has also highlighted the benefits of ODR and how this can be used in mediation and Collaborative law to reduce the pressure on the courts, while also providing a client centered approach to conflict resolution. These changes should be enshrined in court rules and legislation so that they last well beyond the pandemic. As stated in No Turning Back: CBA Task Force Report on Justice Issues Arising From COVID-19: "First, there is no turning back. The pandemic propelled the justice system into a long-awaited modernization. We must continue forward and build on the measures, procedures and innovations implemented in response to the pandemic and focus on the needs of the users of the justice system."

Talking to Your Kids About Divorce - The Most Difficult Conversation of All!

By Alyson Jones, MA, RCC, Divorce Coach, Child Specialist, Child & Family Therapist

Challenging conversations can actually bring your family closer, as difficult conversations can be opportunities for growth. Talking to your children about difficult topics can demonstrate to them that you have their best interests at heart, that you are courageous enough to face problems and that they can rely on you for information and guidance. There are many difficult conversations we need to have with our children but informing the children you are getting divorced may be one of the most difficult of all.


Why is the divorce talk such a difficult conversation? First of all, we need to understand that as parents we are programmed to protect our children. If our child is being bullied we know what our role is. Sometimes we must temper out reactions so we can truly assist our children – but there is no doubt that we have a visceral response when our children are in danger of being hurt physically and emotionally. I can certainly recall times when my own “mother bear” reared its head and I wanted to retaliate against the bully that was attempting to harm my child. Of course, I realized that it would be wildly inappropriate for a middle age Child and Family Therapist to be taking down some 8-year-old that was teasing my child on the playground – but I won’t pretend that the thought did not cross my mind!

 
This desire to protect also applies to conversations about sex and drugs. There is some outside force that might harm our child – and we want to prepare and protect our child against something dangerous. Our protective role is clear. So, the truly complicating factor that makes talking to your children about divorce so difficult is that the parents are the source of the pain. This causes great dissonance. How do we help protect our child against ourselves – when we are the ones causing great sadness and distress in our children? This may be the reason so many parents avoid this conversation, or rush through it by trying to tell their children that everything will be fine.


The bad news is that talking to your kids about divorce is one of the most difficult conversations that parents can have with their children. Although I understand and empathize with the guilt parents may feel in this situation, this guilt and discomfort should not be used as an excuse to avoid doing what must be done. I caution parents that avoiding this conversation, or candy coating it in some way, may only cause additional distress and pain in the long run for the children.

 
The good news is that if the parents do this conversation well, they can help their children adjust and heal much quicker. Change is inevitable in life, and how we approach the divorce talk can teach children that grace and dignity can be part of grieving and healing. There is no perfect way of having this talk – but it is best when it is done in an authentic and thoughtful manner.


Some tips for talking to your children about divorce:

1. It is always best if both parents can tell the children together.  You brought the children into the world together, and you owe it to your children to make their needs more important than your marital difficulties. It is important to come together and hold the space for your children during this conversation.  The parents need to be the leaders – and leaders show their true strength during the most difficult of times.  This will demonstrate true courage in the face of adversity and set the template for your children to develop grace under fire.
2. Give them an explanation.  Do not give your children too many details regarding your marital difficulties but do provide an explanation that makes sense to them.  Let them know your love has changed, and sometimes adult love changes and no longer fits together like it once did.  Let them know as a couple you have done many things well – like creating them – but unfortunately you did not work out your problems well together.  Honour each other in front of the children and let them know you are sad as well – but do not let your sadness or feelings dominate the discussion.
3. Acknowledge that this is a sad day for the family.  Tell your children that whatever they are feeling is ok.  It is ok to be sad, mad, disappointed and fearful of the changes.  Don’t try to “sell them a line” that everything is great and they will be happy again soon.  Do not be afraid of their sadness – acknowledge it – and let them know there are some things that are worth feeling sad about.  
4. Be honest about what will be changing and what will not be changing.  Let them know that their schedules and living arrangements will be changing.  Tell the children that some things do not change. Let them know that although adult love can change– the love between parents and children is a unique kind of love and it never changes.
5. Let them know that a plan is in place.  It is best if you have this worked out beforehand.  Children need to know their schedule.  Reassure them that you will still work together as their parents, and rather than just one home they now have two safe harbours in the world.  Let them know there may be bumps ahead – but you will do your best to work through the bumps and that they are your top priority.

Leading your children through changes in your family can build a deeper intimacy with your children.  It is a real-life experience in which they can see you continue to do your job as a parent even under pressure.  Our challenges and human vulnerability often connect us – and this can be the gift that emerges as your family changes and evolves. 

Impact of COVID-19 on Guideline Income

By Patti Daum, Financial Specialist, CPA, CA, CBV

As spouses separate, the issue of child and spousal support often becomes an issue, and it may be necessary to measure one or both spouse’s income available for support purposes (or “Guideline income”).

Given the far reaching economic and financial impacts of the pandemic on many taxpayers, historical income may not be indicative of income for the foreseeable future.  It may become more important to assess monthly income (rather than just annual income) in this rapidly evolving situation.

During COVID-19

British Columbia is currently (January 2021) in Stage 3 of our Restart Plan, with a number of province-wide restrictions currently in place, which impacts many businesses including nightclubs, restaurants, vacation accommodation including hotels and resorts and all other businesses who enjoy spin off economic benefits from tourism, aviation and the performing arts, to name a few.  Those individuals going through separation and divorce who have their own businesses in these sectors and many others, are likely financially impacted by COVID-19.

In our view, as activities adjust to the “new normal”, monthly data will become more important in establishing current and prospective income during COVID-19.

While not strictly a component of Guideline income, parties may want to consider the impacts of potential cash injections into businesses to keep them operational.

Potential approaches to take to estimating income during the pandemic

1. Use monthly information to estimate available income during COVID-19.
2. Consider modeling scenarios in order to understand the practical implications of lower income.  While income may not ultimately be determined based on these scenarios, they will help in planning for the family’s needs.
3. Use financial planning experts/tools to assist in making sure the family’s needs are met during the period of lower income.
4. Treat the during COVID-19 period separately from ‘available income after COVID-19’.
5. Maintain flexibility to revisit available income in the future.
6. When businesses are involved, take a holistic approach to the business to consider the impacts on the business in terms of cash injections required, structural changes (lower staffing levels), and other changes.

After COVID-19

With the country slowing starting its vaccination program, individuals may want to revisit available income after COVID-19 is no longer as prevalent or active (Stage 4 of BC’s Restart Plan).  While this may be an option for some, we note that obtaining reliable data of available income for an operating period after COVID-19 will result in a significant delay.

Available income will be impacted by trends caused or accelerated by COVID-19 and structural changes in the business.  As an example, will staff that were laid off be able to be replaced.  If not, how will that impact the capacity of the business?

The extent to which demand will rebound is unknown at this point.  While we are confident that the economy will recover, what is unclear is the shape of the recovery.



If you need assistance from professionals to determine the appropriate income amount to use for child and spousal support purposes, financial specialists with an accounting designation (CPA) and Chartered Business Valuators (CBVs) frequently assist clients and lawyers analyze annual and where necessary, monthly incomes. If you are looking for help in Vancouver or the Lower Mainland in BC, Collaborative divorce professionals, including financial specialists and lawyers who assist with this work, are listed on the CDV webpage.