Unbundled Family Law Services Project: Help MediateBC with an Important Initiative

MediateBC is in the middle of its Family Unbundled Legal Services Project, an initiative aimed at encouraging more family law lawyers to offer short legal services to support families involved in mediation. Among other things, the project is looking to find out more about how lawyers provide short legal services and how those services are used.

MediateBC is looking for more information from British Columbia family law lawyers as well as from people who have been involved in a family law dispute anywhere in Canada, and invites you to complete a survey that you can find on their website. One survey is provided for family law lawyers, another for families. 

Please help MediateBC gather the data they need for this important initiative and take the time to complete their survey.

BCAMI Family Law Arbitrator Training

The British Columbia Arbitration and Mediation Institute is offering training in the arbitration of family law disputes. This five-day, forty-hour course is being run by noted arbitrator Glen Bell, who has long provided the BCAMI's commercial arbitration training, and includes presentations from a number of prominent British Columbia family law lawyers including myself and:

• Lisa Hamilton
• Georgialee Lang
• Karen Nordlinger
• Craig Neville

This course will be useful for any lawyer wishing to practice as a family law arbitrator.

I have personally enjoyed arbitrating family law disputes. I appreciate the flexibility the process offers about the style and nature of hearing and the manner in which evidence and arguments are presented, not to mention the intrinsic privacy arbitration provides. Arbitration is a high value alternative to litigation when a family law dispute cannot be settled, and I recommend it to anyone who wishes to keep his or her dirty laundry out of the public spotlight and seeks a speedy resolution.

Dates: 30 November to 4 December 2015 

Place: People's Law School, 900 Howe Street in Vancouver 

Cost: $1,890.00

Note that there may be prerequisites which must be met by those wishing to take the course. This is mentioned on the registration form, but I've been unable to find any details on the BCAMI's website.

Get Over It, Part One: Why It Pays to Let Bygones Be Bygones in Family Law Disputes

Difference is a necessary part of the human condition, without which we'd be an awfully dull lot. Although difference is what gives us creativity and invention, it's also the cause of intolerance and war, and it's what keeps family law lawyers in business. As Martin Gore famously put it,

People are people so why should it be
You and I should get along so awfully?

There are an infinite number of reasons why committed, long-term relationships breakdown. Some people get bored. Some grow apart as they get older. Others just turn into assholes.

Once upon a time, thanks largely to Catholic dogma, marriage was presumed to be a permanent enterprise that would end only upon the death of one or both spouses. That was probably a reasonable arrangement when life expectancy topped out at 30 or 35, but people nowadays generally live into their 80s, and a life-long commitment to one person is an awfully, awfully long commitment.

However, when we of the commonwealth let our hair down in 1857 and agreed that people could get divorced, we weren't prepared to simply walk away from a centuries-old dedication to permanent misery. As a result, you couldn't just say talaq, talaq, talaq and be done with it, you had to get a judge to make a divorce order and that meant proving that you met the legal test to qualify for divorce.

If you had the good fortune to be male, you could ask for a divorce under s. 27 of the Divorce and Matrimonial Causes Act on the basis that your wife had committed adultery at some point during your marriage. If you happened to be female, simple adultery was a no-go. Instead, you could ask for a for a divorce on the basis that your husband had committed:

• incestuous adultery;
• bigamy with adultery;
• rape, sodomy or bestiality;
• adultery coupled with cruelty; or,
• adultery coupled with — my favourite — "desertion without reasonable excuse" for at least two years.

We in Canada are so awesomely progressive that our first legislation on divorce, the 1968 Divorce Act, abolished the distinction between sexes. Regardless of gender, you could ask for a divorce on the basis that you had been separated for at least three years, or, under ss. 4 and 5, that your spouse had:

• committed adultery;
• been guilty of sodomy, bestiality, rape or a "homosexual act" (exquisite interior design, perhaps?);
• gone through a form of marriage to someone other than yourself;
• treated you with such cruelty that you could no longer live together;
• been imprisoned for at least three of the last five years;
• been recently sentenced to death or imprisonment for at least ten years;
• been "grossly addicted" to alcohol or drugs for the last three years; or,
• disappeared for the last three years or deserted you for the last five years.

Ahead of our time we truly were.

The Divorce Act didn't stop there. You could also ask the court to make orders for spousal support and child support, and for the custody of your children. However, the court, in addition to considering your "condition, means and other circumstances," also had to think about "the conduct of the parties." Ouch. You can imagine the havoc wrought when success or failure hung on proof of your misconduct during your marriage, or that of your spouse.

Things got much better with the 1985 Divorce Act, which introduced a "no-fault" version of divorce. Although you could still get divorced because of your spouse's adultery or cruelty, misconduct was removed as a consideration in making orders for child support, and the court was expressly forbidden from considering the conduct of a spouse during the marriage when making orders for spousal support and custody.

Now the thing about people is that you can say that misconduct isn't a factor, but it doesn't stop them from thinking that it should be a factor, especially when they're still full of the fraught and inflated emotions that accompany the breakdown of a long relationship. (Terrible lawyers who fail to steer their clients away from this line of thinking certainly don't help.) This brings me to the point of this particular post: it is both idiotic and expensive to take positions in family law disputes because of your hurt feelings or desire for revenge. Let me give you a couple of examples and explain.

"He knew that full well that doing drugs was a deal-breaker — that was why my first marriage broke up! — and he did cocaine anyway. Is this grounds for me getting more than half the family property?" 

"She's the one who had the affair. I'm not going to pay her a penny of support, even if I have to quit my job." 

"I told him when we got married that pornography was an issue for me. He promised me that he would never use it. When we got an internet connection, I asked him again if he would be able to avoid looking at pornography, and he promised he could. I just saw his web browser history and I am completely disgusted. I feel that he's broken a fundamental trust. I want sole custody!"

All of these statements come from people I've spoken with in the last few months, and, regardless of my personal views on the probity of such behaviour, they were all pretty wound up about the situations they found themselves in and were genuinely upset about their spouse's behaviour.

I get that. I understand. I've had thousands of clients in the years I practiced family law, and I totally appreciate how hot emotions run when a long-term relationship comes crashing to the ground. No worries. A problem, however, arises when these emotions are allowed to drive the train rather than the rational side of your brain. The simple truth is that if you walk into court with positions like these, you will lose. None of these positions are supported by the law or the legislation. Not only will you most certainly lose, but:

• your legal fees will be much higher than they would otherwise have been;
• you may be ordered to pay your spouse's costs of the application, the trial or the whole of the court proceeding;
• the enmity you feel toward your spouse now will last far longer than it normally would, and your spouse is certainly going to share the sentiment; and,
• you will likely lose the respect of your children and, I hope, of your friends and family as well.

The thing is, we no longer think about fault, misconduct, narcissistic injury and the priggish sensibilities of a spouse when we deal with family law problems. Yes, doing illegal drugs is a problem, but it's got nothing to do with how property is divided. Nothing. If you have kids, and he's high when he looks after them, then I have a problem, not because I have a moral issue with his choices but because it reflects poorly on his priorities and parenting capacity. Yes, having an affair is bad, but it's got nothing to do with whether your spouse is entitled to spousal support. Nothing at all. And if you quit your job, I'm going to ask the court to impute income to you and ask for your spouse's costs of the application because of your petty, irresponsible behaviour. Likewise I have no issue with someone's use of pornography, unless the pornography involves children or he watches pornography in front of the kids. You might object to behaviour you consider sinful, but your views of his corruption and general naughtiness have nothing to do with his relationship with the children and capacity to care for them. 

Now consider, for a moment, how your spouse is likely to respond to claims involving his or her weak morals, drug and alcohol use, abusiveness, quick temper, masturbatory habits and so forth. People don't generally take kindly to seeing claims like that in court papers, whether they're true or not, and tend to fight fire with fire. I guarantee that your spouse is not going to write an affidavit admitting to everything. Instead, your spouse will file a stern response that not only denies the truth or extent of the claims you've made but asks for costs, and will then write an affidavit talking about all of your peccadilloes and indiscretions! I once had a case, very early on in my career, which went something like this:

Her: "You drink all the time. You're always drunk and there are empties all over the house. You even drive when you've been drinking." 

Him: "I only drink socially, one or two beers at most, and I never ever drive when I've been drinking. You smoke pot. You even smoked pot while you were breastfeeding our daughter."

She thought she was seizing the moral high ground by pointing out his weaknesses. He replied by trivializing the severity of his drinking, as I would have expected, and came back with a spicy counterargument about her drug use. I still very much regret this case. 

But what do you think the court does in circumstances like this? Each person is behaving like a child, busy throwing shit at each other, and the job of the judge is reduced to deciding which parent is the least shitty. Is this how decisions about the care of children should be made? With the greatest of respect, I think not.

The court, you see, does not want to deal with people who come to court with problems, complaints, grievances and bizarre claims that have no reasonable prospect of success. The court does want to deal with calm, rational people who come to court with solutions, and whose preferred results are well within both the law and the range of likely outcomes. Among other things, this means:

• dropping arguments and claims that are based on your own feelings of woundedness or your spouse's purportedly immoral behaviour;
• avoiding mention of historical events that are not genuinely relevant to the claims before the court, no matter how much those events upset you and continue to upset you;
• keeping your complaints about minutiae and the mundane to yourself;
• writing affidavits that are maximally factual, avoid invective and use a minimum number of adjectives and adverbs;
• agreeing to obligations that you cannot avoid;
• making claims that are minimally controversial, like asking for a divorce based on separation even though you could also ask for a divorce because of your spouse's infidelity; and,
• proposing rational solutions that look to the future, that work for everyone and that are likely to promote the best interests of your children.

Put more simply, you must grow up and let bygones be bygones. Trust me; this will redound to your benefit, that of your spouse and those of your children.

New Guidebook to Settlement Processes for Self-represented Parties

Professor Julie Macfarlane, along with Hannah Bahmanpour and Katrina Trask, has just published her latest resource for persons without counsel through her National Self-represented Litigants Project.

"Settlement Smarts" for Self-represented Litigants (PDF) is intended to help people work more effectively in settlement processes, whether the person on the other side of the table is also without counsel or a lawyer. Settlement Smarts talks about judicial settlement processes, mediation and negotiation, and offers helpful tips about preparing for these processes, strategy and what happens when agreement is or is not reached.

Settlement Smarts is one of a growing number of excellent resource offered through the National Self-represented Litigants Project. Another helpful paper is Coping With the Courtroom: Essential Information and Tips for Self-represented Litigants (PDF), by Prof. Macfarlane and Ms Bahmanpour, which discusses the basics of courthouse operations and courtroom procedures, and guides readers through opening statements, the direct- and cross-examination of witnesses and expert witnesses, and closing arguments.

Although links to material on the internet can be distributed as you wish, contact the National Self-represented Litigants Project directly — there's an email address at the foot of each page of its website  — for permission to distributed printed copies of these helpful papers.

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 Required	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 Processes	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.

Law Commission of Ontario Releases Report on Access to Justice

Today the Law Commission of Ontario has released an important new report, "Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity." The report provides an important assessment of the strengths and weaknesses of the family law justice system in Ontario and the barriers faced by those who must proceed in court without the benefit of counsel, and makes a number of recommendations as to how the system could be reformed, including an multidisciplinary, holistic approach to family law problems.

Here's the summary from the Commission's press release on the report.

The family law system has been the subject of much comment in recent years and many reports recommending changes to the system. Since 2010, there have been reforms in relation to procedures to address domestic violence against women, provision of information, methods of resolving disputes other than the courts, changes in the courts and other efforts to improve the system. Yet persons facing family disputes still find the system complex and difficult to navigate. The LCO’s Final Report focuses on the initial stages of the system, notably the provision of information, ways of providing initial advice and the interrelationship of legal problems with other kinds of problems.  

The Report emphasizes the need for the system to respond to the evolving pluralist nature of Ontario’s population, and addresses how factors such as literacy levels, cognitive disabilities and, geographic location, among other characteristics, affect how easily people can access and use information, the affordability of legal representation and the degree to which legal problems are affected by other kinds of problems. It recommends the creation or enhancement of multidisciplinary, multifunctional centres or networks that link with “trusted intermediaries” such as cultural centres. “Tinkering with the family law system is not sufficient,” says LCO Board Chair Bruce Elman, “There needs to be comprehensive reform if it is to be made more accessible and effective for those who need it”.

This report adds to the growing number of reports calling for fundamental reform of the family law justice system and is well worth a read.

"JP Boyd on Family Law" Published

Today, the wiki became a wikibook when the first copies of the first print edition of the 670-page volume JP Boyd on Family Law were delivered to the library at the Vancouver Law Courts. The print run demonstrates the incredible potential behind the wikibook platform for the cost-effective delivery of public legal education. It is, I expect, the first of many editions to be released in the future as the wikibook is updated, by an editorial team of senior and junior family law lawyers, to keep pace with the continuing evolution of the law.

Photo: Clara Richardson

Copies of JP Boyd on Family Law will be distributed by Courthouse Libraries BC to every public library in the province as part of their LawMatters community outreach program.

I am tremendously grateful to everyone at Courthouse Libraries, in particular Johanne Blenkin, executive director, Drew Jackson, director of client services, and Nate Russell, legal community liaison, for their conception of and continuing enthusiastic support for this project. Thank you all very, very much.

Regulations to Family Law Act Published

The orders in council implementing the regulations required by the new Family Law Act were made on 23 November 2012 and published on 26 November 2012.

The regulations will, as of 18 March 2013, the day the Family Law Act comes into force, repeal the regulations under the old Family Relations Act and replace them with the Family Law Act Regulation (PDF) and the Family Law Act Pension Regulation (PDF). A host of regulations to other statutes, from the Contaminated Sites Regulation to the International Business Activity Regulation, are amended to accommodate the Family Law Act by orders in council 798 to 846 (PDF).

The Family Law Act Regulation deals with:

1. the provincial employees able to work as family justice counsellors and the information and documents required for their work;
2. the minimum training standards required for professionals working as mediators, arbitrators and parenting coordinators under the Family Law Act;
3. the adoption and adaptation of the federal Child Support Guidelines for use in British Columbia under the Family Law Act;
4. the continuing work of the Child Support Recalculation Service out of the Kelowna registry of the British Columbia Provincial Court;
5. the forms required for the appointment of standby and testamentary guardians under ss. 55 and 53 of the act; and,
6. fixing $10,000 as the limit of the value of children's property which can be managed by a guardian without court order under s. 178 of the act;

According to the press release from the Ministry of Justice, the training standards required for professionals working as mediators, arbitrators and parenting coordinators consist of:

"At least 14 hours of in-depth training on how to identify and screen for family violence or power imbalances to determine whether, or what type of, dispute resolution process is appropriate. 

"A minimum level of family-related experience and training in their area of practice. 

"A minimum of 10 hours a year, per year, of ongoing training to ensure their skill set remains relevant. 

"Extensive training on the new Family Law Act."

These training standards must be met by 1 January 2014, giving everyone just over a year to get up to speed. Lawyers working as mediators, parenting coordinators and arbitrators will also additionally be governed by the training standards (PDF) required by the Law Society as they may be amended from time to time.

It is not entirely clear what fate will befall non-lawyers who have not taken the training required by the deadline. At a minimum, it seems to me that such people will not be "mediators," "parenting coordinators" and "arbitrators" to whom the court can refer people under the Family Law Act and, in particular, that the awards of people working as arbitrators and the determinations of people working as parenting coordinators will not be "awards" or "determinations" capable of enforcement under the act.

The Ministry of Justice has published a new page on its website explaining the new regulations.

MediateBC Releases Updated Guidelines for Distance Mediation

MediateBC has announced the release of the Distance Family Mediation Project’s second edition of Mediating from a Distance: Suggested Practice Guidelines for Family Mediators (PDF). According to the blog post announcing the release:

"The guidelines are a detailed compilation of the knowledge acquired by our Distance Family Mediation Project on the topic of how to conduct family mediation 'from a distance', using technology. The project – which took place in three phases, beginning in 2007 – explored the feasibility of using information and communication technologies to conduct distance family mediations in British Columbia. The third phase, completed in June 2012, was a pilot providing family mediation services to people in all parts of the province, with a focus on using web conferencing technology. 

"This second edition of Mediating from a Distance updates and expands on the guidelines published previously by our project, and highlights the knowledge gained during the third phase. It provides a new and exciting emphasis on how to mediate using video and web conferencing technology, as well as offering additional suggestions for mediating with other types of technologies." 

MediateBC has done a fantastic job piloting distance mediation, an essential resource in the lesser-populated areas of the province where it can be very difficult to find a qualified mediator.

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.

Collaborative Practitioners and Child Interviewers: Two New Groups Launch in May

The new Family Law Act has spurred somewhat of movement toward organization among the family law community. In some cases, like that of the BC Hear the Child Society, existing groups have been prodded into action, and in others, like those of the BC Collaborative Roster Society and the yet-to-be-named family law arbitrators association, new groups are organizing themselves from scratch.

The impetus likely comes from the definition of family dispute resolution processes at s. 1 of the act:

"family dispute resolution" means a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside court, and includes ...

(b) the services of a parenting coordinator under Division 3, 

(c) mediation, arbitration, collaborative family law and other processes ...

The definition is important, because certain other provisions of the act - notably the provisions for the enforcement of parenting time and contact at ss. 61 and 63, and for the making of conduct orders at ss. 222 to 228 - allow the the court to refer parties to family dispute resolution in the middle of a court action.

This month, we've seen the formal launching of the BC Collaborative Roster Society, in Vancouver on 10 May 2012, and the BC Hear the Child Society, in Kelowna, Vancouver and Victoria on 10, 14 and 16 May 2012. The BC Hear the Child Society will hold an event in Kelowna on 7 June 2012.

BC Collaborative Roster Society

This group has followed up on the recommendations of the Family Law Working Group in 2005 that a roster be established for collaborative practitioners in order to provide the public with a roster of qualified  practitioners in the collaborative practice model. According to the group's website:

"The BC Collaborative Roster Society provides an opportunity for the public to access information about Collaborative Practice, as well as a province-wide roster of professionals who are trained, experienced, and committed to excellence in Collaborative Practice. 

"The BC Collaborative Roster Society is committed to furthering the growth of high quality Collaborative Practice through continued training and support of collaborative professionals."

The lawyers and mental health professionals on the roster have all met the society's rather exacting membership requirements (PDF).

The group's board of directors is composed of Lisa Alexander, Robert Colby, Bev Churchill, Cally Farr, Karen Henry, Deirdre Severide and Danny Zack, led by president Nancy Cameron, QC. 

BC Hear the Child Society

This group describes itself as "a non-profit organization that aims to give every child the opportunity to share their views and have them heard when their best interests are decided in the family justice system." The group offers a roster of lawyers and mental health professionals who have met the society's membership requirements to prepare non-evaluative reports.

According to the group's website:

"The purpose of a non-evaluative child interview is to listen to the child so that the child can express his or her views in relation to family breakdown or transition, and have them considered in decisions made about their best interests. The Interviewer does not assess the child, his or her best interests, or the parents."

The group's board of directors is composed of John-Paul Boyd, Trudi Brown, QC, Robert Colby, David Dundee, Arlene Henry, QC and Derek Swain, led by president Ron Smith, QC.