Save the Date! New Course on the Intersection of Family Law and Psychology Coming to Vancouver

A brand new two-day course, "Assessments and Interventions: The Intersection of Family Law and Psychology," is coming to the Pan Pacific in Vancouver, British Columbia in March. The course is being put on by the Continuing Legal Education Society of BC and the course chairs are myself and Morag MacLeod, a noted Vancouver family law lawyer, and Alyson Jones, a well-known registered clinical counsellor based in West Vancouver. Morag frequently presents for groups including CLEBC and the Trial Lawyers Association of BC. Alyson teaches at the Adler University and presents for the Association of Family and Conciliation Courts.

Here's how the promo material from CLEBC describes the course:

This two-day course, taught by a multidisciplinary faculty of expert lawyers, judges, psychologists, and clinical counsellors, will provide insights and practical guidance on how psychology intersects with family law disputes. 

Day 1 will feature a discussion of childhood developmental psychology, how to craft age-appropriate parenting plans, how children experience separation and conflict, and judicial and therapeutic interventions in family law disputes. 

On Day 2, experts’ forensic reports on children and parenting and the legal and scientific standards that apply to them will be critically examined. The second day will also address the causes of and potential remedies for children’s reluctance to visit a parent after separation, focusing on parental alienation and child estrangement.

Other esteemed faculty include:

• Dr. Phil Stahl, forensic psychologist licensed in Arizona, California and Michigan and author of Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation, and Expert Testimony
• Professor Nicholas Bala of the Queen's University Faculty of Law and author of Children Who Resist Post-Separation Parental Contact: A Differential Approach for Legal and Mental Health Professionals
• The Honourable Mr. Justice Abrioux, of the Supreme Court of British Columbia
• Drs. Nicole Aubé, Michael Elterman, Mary Korpach and Rebecca St. Clere England, all prominent psychologists practicing in the Lower Mainland
• Lawyers Nikki Charleton, Jesse Desilets, David Dundee, George Gordon and Jonathan Lazar of the Lower Mainland, and lawyer Suzanne Williams of Victoria

This is going to be an excellent course. It is designed for a multidisciplinary audience of lawyers, mental health professionals, mediators, arbitrators, parenting coordinators and judges, and will be relevant for anyone practicing in Canada or the United States whose work involves separating and separated families. Best of all, there's a seat sale on right now that'll give you a whopping discount on the ordinary price.

The present draft of the agendum is available on CLEBC's website. Here are the details...

Dates

10 and 11 March 2016
(Register for both days or either day.)

Place

Pan Pacific Hotel, Vancouver

Price, given for both days

Early bird rate until 11 February 2016

$1,030 regular, in person
$575 students, in person
$910 live webinar

Rate after 11 February 2016

$1,140 regular, in person
$635 students, in person
$1,010 live webinar

Mental health professionals

Special reduced pricing is available, contact the customer service department

Seat sale rate

$740 regular, in person
$610 live webinar

Register

www.cle.bc.ca

A Different Approach to Parental Alienation Cases: It's Time to Try Something New

Family law cases involving sincere allegations of parental alienation are difficult, highly emotional and profoundly conflicted. Although a certain number of these cases were likely to be high-conflict anyway, adding allegations of alienation to the mix makes conflict a near certainty. I can, however, imagine an alternative, more child-centred approach to these cases that just might encourage negotiation and curb the usual headlong rush to trial.

Allegations of alienation are extraordinarily painful to all involved, and it seems to me that it is the intensity of our emotional response to such allegations which sparks the fight-or-flight response spurring conflict and inhibiting our capacity for rational judgment. Consider, for a moment, the context in which these allegations are raised for both parents.

Rejected parents are generally struggling with the achingly painful loss of a relationship with their children at the same time as they're dealing with the legal fallout from the end of their relationship with the other parent. The loss of a relationship with a child is not the loss of a relationship with a friend or adult family member, but the loss of an intimate nurturing relationship with thickly interwoven elements of caregiving, mentoring and vulnerability. It is also a relationship so heavily laden with social expectations, usually of the Norman Rockwell and Hallmark Cards varieties, that the personal loss is inevitably accompanied by significant narcissistic injury and feelings of failure, inadequacy and abandonment.

The sting of the loss is felt just as keenly whether the child’s rejection of a parent was a reasonable reaction to the personality and parenting traits of the rejected parent or arose from the malicious, willful efforts of the favoured parent. In my experience, parents whose behaviour had triggered the breakdown of their relationship with a child were generally oblivious of the fact. It is always easier, it seems to me, to blame someone else for one’s own failings, especially on matters so closely tied to ego and self-esteem.

Favoured parents, on the other hand, seem to react to allegations of alienation with the same degree of strident indignation whether they poisoned the child’s relationship with the rejected parent or not. They may characterize such allegations as spurious attacks on personality, desperate attempts to gain advantage, superficial pretexts for the pursuit of sole custody or nothing more than old school mud-slinging. Either way, it is rarely tactically possible for favoured parents to acknowledge the truth, or even partial truth, of allegations of alienation; such allegations must always be contested.

Of course, to round out this discussion of context, it must also be remembered that allegations of alienation do not occur in the same sort of dispassionate, arm’s-length relationship that exists between the parties to personal injury lawsuits or shareholders’ grievances. The parties involved in family law proceedings once (usually) trusted each other and loved each other deeply. They held hands together, broke bread together and, at least once, slept together. Now, however, they are adversaries opposed in interest, engaged in combative court proceedings, who nonetheless will maintain a lifelong relationship with one another.

As a result of this unpleasant emotional stew, unaffected allegations of alienations either trigger conflict, or take existing conflict to new heights, and raise the stakes such that the rejected parent cannot resile from his or her claims without a serious loss of face, or a potential admission of poor parenting skills, nor can the favoured parent concede even the partial accuracy of those claims.

In a previous post on Slaw, “Therapeutic Interventions and the Alienated Child: Whose Interests Are We Serving, and How Are We Serving Them?,” I suggested that the basic characteristic shared by all children who had become alienated from a parent is the child’s pathologically distorted views and feelings toward the rejected parent. I argued that if the best interests of the child is truly the primary consideration in all decisions affecting children, that the primary goal of all therapeutic interventions should be to transform the child’s distorted thinking into more realistic views and feelings that are based on the child’s actual experience of the rejected parent. I argued that that the restoration of the parent-child relationship should not be the primary goal of such interventions, although the repair of that relationship would obviously be a welcome incident of the repair of the child’s distorted views and feelings.

Of course, the even more fundamental characteristic shared by all children whose relationship with a parent has broken down, because of the actions of the favoured parent (alienation) or because of the parenting skills or past behaviour of the rejected parent (estrangement), is the loss of the parent-child relationship. Whether the cause of the breakdown can be agreed upon or not, the fact that the breakdown has happened is usually manifest and beyond dispute. This is what Alyson Jones, the noted Vancouver clinical counsellor, has described as “attachment disruption.”

What if, instead of responding to the breakdown in parent-child relationships as alienation, casting blame on the favoured parent, or estrangement, casting blame on the rejected parent, we instead focused on the fact of the child’s attachment disruption, its impact on the child’s wellbeing and the means by which the child’s wellbeing might be revitalized and enhanced? What if rejected parents could not allege alienation at the hands of the favoured parent but only the fact of the child's attachment disruption?

There are, I suggest, a number of benefits to be gained from such an approach.

Firstly and most importantly, the disruption of a child’s relationship with a parent is a tangible, measurable fact that has nothing to do with blame. The fact of the child’s attachment disruption can be established without the need to pursue its cause; it ether exists or it does not.

Secondly, placing the focus of enquiry on the child’s attachment disruption minimizes conflict by discouraging the need to lay blame, whether on the favoured parent or the rejected parent. It allows the favoured parent to consider the breakdown of the child’s relationship with the other parent as primarily an issue of the child’s health and welfare, and eliminates the need to respond to hurtful allegations of misconduct. It likewise allows the rejected parent to focus on the issue as the child’s problem rather than the parent’s personal problem, and, in lessening the pain of the loss of the relationship, the need to find fault with the favoured parent is also lessened.

Thirdly, placing the focus of enquiry on the child’s attachment disruption encourages favoured parents, as well as rejected parents, to raise the breakdown in the parent-child relationship as an issue that must be resolved to promote the child’s wellbeing in the legal proceedings.

Fourthly, in avoiding the need to lay blame we avoid the need to identify a cause of the child’s attachment disruption. What is important is the fact of the disruption, not an investigation into fault. (Besides, my impression of these cases is that there are very few situations that are purely alienation or estrangement; most of the time, the breakdown of the parent-child relationship results from elements of each.) If we can avoid the need to lay blame, we reduce the intensity of emotions and conflict, increase the likelihood of settlement, reduce the cost of experts’ reports and decrease the length of trial.

Finally, this approach is child-centred and emphasizes the therapeutic goal of addressing the child’s attachment disruption. It allows parents’ behaviour to be criticized without incrimination and thereby promotes the constructive engagement of both parents in the therapeutic process.

It is important to recognize that this approach does not prevent the court from addressing the negative behaviours typically raised in proceedings alleging alienation or estrangement. A parent prone to disparaging the other parent in the presence of the children can be required to attend therapy or be restrained from making negative remarks merely upon proof of the impugned behaviour, without the need to also allege alienation. Similarly, a parent prone to the sort of harsh discipline that can result in estrangement can be sent to anger management or be restrained from hitting the children, without the need to allege alienation or counter with allegations of estrangement.

It is also possible to pursue the other remedies typically associated with parental alienation without making such allegations. It is not necessary to allege alienation to pursue contempt proceedings for failure to adhere to a parenting schedule, seek costs for a parent’s misbehaviour, or apply for case management or the appointment of a parenting coordinator. It is not necessary to allege alienation to pursue a switch in primary residence or severely truncate the favoured parent’s contact with the child, if that is what is needed to address the child’s attachment disruption.

Allegations of alienation are toxic and invariably exacerbate conflict between parents, whether the allegations are well-founded or not. The frequency of these allegations, albeit not their substantiation, is continuing to increase, as shown in recent work of the Canadian Research Institute for Law and the Family (PDF), and these cases are sucking up increasing amounts of judicial resources, not to mention litigating parents’ financial resources. They diminish or delay parents’ capacity to successfully cooperate in the raising of their children after trial and increase the likelihood that the parents’ legal dispute will have a lasting negative impact on their children, potentially impeding children’s relationship formation and social functioning as adults.

Approaching the breakdown of parent-child relationships from the lens of attachment disruption strikes me as likely to minimize parental conflict, increase the likelihood of settlement and successful co-parenting, and emphasize the overarching importance of supporting children’s wellbeing after separation. Without a doubt, research and much more thinking is necessary to support and more fully develop this concept, but in the meantime I encourage parents and counsel to refrain from the slings and arrows of alienation allegations and consider a more neutral approach focusing on the fact of the damaged parent-child relationship rather than the cause of the damage.

A version of this post was originally published in the online legal news magazine Slaw on 16 October 2015.

It's Hammer Time: Provincial Court Exercises Extraordinary Enforcement Powers to Jail Litigant

British Columbia's Family Law Act improves over the old Family Relations Act in many ways, including by giving the Provincial Court the power to enforce its own orders, which is exactly what the Honourable Judge Bond did in the recent case of J.R.B. v J.H.F. 

Under the old legislation, the power of the Provincial Court to enforce its own orders was very limited. If you lipped off the judge, you'd get into some trouble for sure, but enforcing orders about guardianship, custody and access was very difficult — you actually had to commence a private prosecution under the Offence Act, a complicated process that hardly anyone ever attempted — and the court could not make costs orders. At least the Family Maintenance Enforcement Program more or less took care of enforcing support orders.

The new legislation, however, comes with some pretty sharp teeth, especially s. 231 which allows the court to imprison a person for up to 30 days if it is satisfied that "no other order" under the act "will be sufficient to secure the person's compliance." (The section also allows the court to make peace officer enforcement orders in respect of parenting time and contact, which I've discussed elsewhere.)

The decision in J.R.B. concerned the variation and enforcement of a number of orders made at trial, including a publication ban and a protection order intended to prevent all contact between the father and the mother and her family. (The father had been subject to similar orders prior to trial which he breached on "countless occasions," mainly when the child was between exchanged for the purposes of parenting time, and resulted in criminal harassment charges being laid.) The application before the court, apparently brought on behalf of the mother and her family, sought: an order that the protection order made at trial be expanded; and order that the father be prevented publishing material concerning the litigation and his relationship with the mother; and, an order that the father be imprisoned pursuant to s. 231.

The court allowed the first two claims for reasons that are well worth reading. As it's the claim concerning imprisonment that I'm mostly interested in, I'll just reproduce the court's orders on these two initial claims. With respect to the protection order, the court held that:

"[13] I am going to issue a further Protection Order that provides that [the father] is not to communicate directly or indirectly with any family member of [the mother and her spouse], known to him, including, but not limited to, communicating any of the details of his relationship with [the mother], or any of the matters that are the subject of this or the Supreme Court litigation between the [the mother and her spouse] except communication necessitated by this litigation through [the mother's] counsel. The Protection Order granted at the close of trial remains in effect. This order will not expire."

With respect to the publication ban, the court made a conduct order to the effect that:

"[19] ... [The father] shall not directly or indirectly participate in the disclosure, publication, or dissemination of any material outside of court hearings relating to his relationship with [the mother], or any matters that are the subject of these proceedings to any person, group or other entity except for the express purpose of participating in private therapy sessions addressing his own issues. Furthermore, [the father] shall not annoy or disturb the [the mother and her spouse], their children or family members, friends or church members, known to him, either directly or indirectly. To be clear, this order is not intended to address any conduct by [the father] which amounts to a breach of the Protection Order, which is intended to protect those covered by the order from risk of harm. It is intended to address other conduct by [the father] which has the effect of civil harassment of the [the mother and her spouse]."

Turning to the imprisonment issue then, the court first found that the father had breached the orders made at trial by: publishing the names of the parties and the children on the internet; speaking to members of the mother's church; and, making statements to the general public at the courthouse. (To be clear, the "statements to the general public" were not made in a courtroom in the course of a hearing. At paragraph 10 of her decision, the judge repeated the father's admission that on the day in question he "elected to stand in the court house announcing to all repeatedly that '[the mother's spouse] beats his kids' and '[the mother] is a liar'," and that "following the hearing, he apparently chose to read from his website at the top of his lungs in the hallway of the courthouse, for all to hear.")

Next, the judge clarified that the order that had been breached was the publication ban, not the protection order. This is an important point as protection orders cannot be enforced through the Family Law Act and must be handled as a criminal offence under the Criminal Code, whereas conduct orders, including the publication ban, can be handled through the act's general and extraordinary enforcement powers.

Drawing a parallel with the case law on civil contempt proceedings, the judge held that the purpose of s. 231 is "not to punish" but to "secure compliance" with court orders, in order to ensure that "existing and future court orders will be respected." Because this purpose is specific to particular orders applying to particular people, s. 231 must be applied in light of the particular circumstances of each case. In other words, any order must "specifically address the actual situation before the court," and the father's conduct in this case "must be viewed in the context of the entire proceeding."

The judge then considered the sanctions taken against the father thus far, the enforcement tools available under s. 228 that are specific to the enforcement of conduct orders, which include financial penalties and adverse inferences, and the enforcement tools available under s. 231 (important bits in bold and cites omitted):

"[27] ... [the father's] conduct must be viewed in the context of the entire proceeding, in which he has established a pattern of harassing [the mother and her spouse] to the extent that he was charged with and pled guilty to criminal harassment. Subsequent to being sentenced for that offence, he engaged in the conduct complained of, and other acts which appear to be intended to punish [the mother and her spouse] or perceived offences against [the father].  

"[28] While this context suggests that the lower range of the remedies offered may be inappropriate, it is well established that the sanction of imprisonment should be used sparingly, and only when no other remedy will be sufficient to secure the person’s compliance. However, neither party suggests that an alternative order is appropriate in these circumstances as this is not a situation where limits on conduct have not been previously considered. In fact, the restrictions on [the father's] contact with his son arise directly from his behaviour and his failure to address his lack of impulse control, issues regarding anger management, and the degree of his hostility and anger towards [the mother's family].

"[29] I note as well, that neither party suggests that an adverse inference is an appropriate remedy in these circumstances. In fact, the risk of an adverse inference being drawn did not inspire [the father] to fully disclose his financial circumstances prior to the commencement of the trial. 

"[30] With respect to an award of costs, a financial penalty or fine, [the mother] notes in her Affidavit ... that [the father] owes $12,000 in child support arrears despite the fact that he has apparently been employed throughout these proceedings. At the end of the trial, he was also ordered to pay $5,000 to [the mother], representing the remainder of his one-half share of the cost of the report prepared ... pursuant to section 211 of the Family Law Act. [The father] had previously been ordered to contribute to that cost, but failed to meet his obligation. [The father] has not made any payment towards either debt. In addition, counsel for [the mother] points out that [the father] was released on cash bail of $1,000 after being charged with criminal harassment and that did not deter him from breaching his bail conditions to keep the peace and be of good behaviour. In fact, [the father] continued to breach the Protection Order and his bail conditions until he was ordered detained.

"[31] In these circumstances, I do not believe that imposing any kind of financial consequences for [the father's] behaviour will have the effect of securing his compliance with court orders. No sanction, other than incarceration has worked to date to impress upon him the importance of complying with court orders and I find that 'no other sanction will force upon his will the authority of this court' as was the case in Manolescu v Manolescu." 

Having concluded that no option other than jail was likely to encourage the father to comply with the various orders made to date, the judge turned to the factors that should guide her decision on the nature and length of the father's imprisonment, and her conclusion on the issue:

"[33] I find that the following considerations apply when determining the duration of the appropriate period of incarceration:

a) the history of criminal harassment that predates the conduct complained of; 

b) the extended period over which [the father's] conduct persisted; 

c) [the father's] prior assurances that he had no interest in harassing [the mother] or her family; 

d) [the father's] apparent failure to address his lack of impulse control, anger management and hostility and anger towards the [the mother's family] through counseling or otherwise; and 

e) [the father's] involvement of others in distributing offending material about the parties to this proceeding.

"[34] In these aggravating circumstances, I find that more than a nominal period of incarceration is required to bring home to [the father's] the fact that he must respect the court’s authority. On the other hand, [the father's] must understand that further action will be taken if he continues to disrespect court orders in the future. In the result, I am going to sentence [the father's] to ten days in jail, to be served forthwith.

"[35] A warrant will issue for [the father's] arrest and he will be detained in custody at a Provincial facility for 10 days, commencing upon his arrest."

To summarize, the steps taken by Judge Bond are roughly these:

1. Determine whether the respondent has breached an order. 

2. Determine whether the breached order is a protection order or some other order available under the Family Law Act; do not proceed if the order is a protection order. 

3. Assess the gravity of the respondent's misconduct in the context of the entire proceeding, including any steps that have been taken to secure the respondent's compliance with the order, or similar orders, in the past. 

4. Consider the appropriateness of any specific enforcement tools provided by the legislation in respect of the order. If one or more of those remedies are likely to be effective, apply those remedies and do not consider a sentence of imprisonment. 

5. If imprisonment is necessary, review the circumstances of the proceeding to date to identify any aggravating circumstances that suggest that more than a nominal period of imprisonment is required.

Although the aggravating factors identified by the judge are drawn from the particular facts of the case before her, it seems to me that some general principles can be deduced:

6. Aggravating circumstances to be considered in determining the period of imprisonment may include:

a. the respondent's history of breaches before the breach which triggered the enforcement action; 

b. the respondent's past excuses for noncompliance; 

c. the respondent's past assurances of future compliance; 

d. the duration of the the respondent's noncompliant behaviour; and, 

e. the impact of the the respondent's noncompliant behaviour on the applicant.

I am grateful to Judge Bond for her clear writing and reasoning, and for taking up, on behalf of the Provincial Court bench, the powerful new tools the Family Law Act makes available.

Thanks to my colleagues Agnes Huang and Morag MacLeod for bringing this case to my attention.

Get Over It, Part Two: Thoughts from the Bench and a Few More from Me

In my recent post "Get Over It: Why it Pays to Let Bygones Be Bygones in Family Law Disputes," I talked about the foolishness of being guided by your hurt feelings or desire for revenge when taking a family law dispute to court. I also gave a few examples of the typical sort of silliness I often saw in my practice as a family law lawyer when parents managed their conflict by exchanging allegations and counterallegations in affidavits, such as this gem from early in my career:

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."

Since that post, a number of colleagues have brought to my attention two recent decisions by Madam Justice Sharma of the Supreme Court of British Columbia which make some rather pointed remarks on this issue, B.A.S. aka B.H. v S.R.S. and A.M.D. v K.R.J. Each case took two days to argue, and Justice Sharma apparently heard them back to back at the end of January 2015. If she happened to be frustrated by the nature of these hearings, which I am sure was not the case, such would be entirely understandable.

B.A.S. v S.R.S.

This decision involved the respondent's application to change a temporary order on parenting arrangements. As is usual for interim applications in the Supreme Court, the only evidence before the court was contained in affidavits. There was no oral evidence.

Here are the judge's preliminary comments about the quality of the affidavit material before her, with some of the more important bits in bold:

"[3] The affidavit material filed in support of and opposition to the application contained hearsay, double-hearsay, statements without attribution or that could not be in the affiant’s personal knowledge, argument, speculation and other statements of dubious admissibility. Allegations are flung from both sides. Each party objected to portions of the other party’s evidence and suggested it was either wholly inadmissible or should be given minimal weight.  

"[4] Some of the claimant’s and respondent’s affidavits relate singular incidents between a child and the other parent that were not significant in the overall assessment of what is the best parenting arrangement for the children. Both parties suggest there are times when they have not been appropriately notified of travel or minor medical and school issues from the other parent. They each accuse the other of talking about the parenting dispute in front of or directly to the children. 

"[5] In addition, the claimant’s affidavit contained a serious allegation against the respondent and his wife about drug use and association with criminals with absolutely no corroborating evidence. In my view, those allegations were improper and should not have been made."

Readers may recall my remark about such affidavit battles in my previous post to the effect that "each party 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." Here is how the judge summarized the parents' positions:

"[9] In general, the respondent takes the position that the children are doing well living with him and his wife and are taking part in a wide variety of activities. He contends the children’s lives when they resided with the mother were 'fraught with conflict, to the point where [the children] expressed, and continue to express, a strong desire to reside' with him and his wife. The respondent seeks to reduce the children’s weekend visits with the claimant from biweekly to once a month and, instead of an entire month in the summer, two non-consecutive weeks with their mother. ... 

"[10] The reduction in the summer time is said to be based on the children’s desire to spend as much time as they can in [the respondent's city] so they can continue with their activities and visit friends.

"[11] The claimant’s response to the application is deficient. ... The factual basis for the response is encompassed in five bullets. Briefly, the claimant accuses the respondent and his wife of interfering with her parenting and making her communication with the children very difficult. The claimant’s position is that the application is not genuine and is a continuation of a campaign to alienate the children from her. This is a serious allegation, which as I discuss below, I am persuaded has not been established on the evidence. Unfortunately, the claimant heavily relies on the allegation of alienation and offers little other factual or legal arguments as to why the application should not succeed. This puts the court in a very difficult position. The sole issue is to determine what is in the children’s best interests but the claimant has not really answered the respondent’s claims. She submits the blanket statement that extra-curricular activities ought not to trump her time with the children yet she offers no views on whether the activities they are engaged in are in the children’s best interest. Nor does she offer a way to accommodate maintaining the current schedule and not diminishing the children’s participation in activities.

"[12] In relation to the application that [the respondent's wife] become a guardian to the children, the respondent says the appointment is necessary to legally recognize the fact that [the respondent's wife] provides the day to day care of the children while he works. He claims the claimant refuses to communicate with his wife, thus making their family life and decision-making difficult and cumbersome. ...

"[13] The claimant is opposed to [the respondent's wife] becoming a guardian but provides no reason other than the fact that [the respondent's wife] is not the children’s biological parent. With regard to communication, she denies she makes it difficult for [the respondent's wife] to communicate with her. At the same time, her position in court is that she is not legally required to communicate with [the respondent's wife] so the allegation that she does not communicate should not be taken into consideration."

Awesome. Unsurprisingly, the judge was lead to this conclusion in allowing the respondent's application:

"[50] This dispute is bitter. It is clear the parties are not working together well. This is tragic and does nothing to promote the well-being of their children."

A.M.D. v K.R.J.

This case was a summary trial hearing, meaning that there was no oral evidence provided by witnesses, and that all of the evidence before the judge was in affidavit format. The following comes from Justice Sharma's description of the facts of the case, with the more important bits in bold as usual:

"[30] The parties brought to my attention over 30 affidavits in this two day application. A lot of the content in those affidavits is inadmissible because it is hearsay, double-hearsay, opinion or speculation, facts stated that are outside of the affiant’s personal knowledge or facts that have an insufficient foundation. Equally, a great deal of the evidence is irrelevant, unhelpful or clearly self-serving and, therefore, of questionable reliability. 

"[31] I find two categories of evidence particularly troubling. The first is where one parent describes his or her observation about a single interaction of the other parent with [the child], the child’s reaction on a single occasion to something the other parent has said or done, or the child saying he was or appearing to be reluctant to want to go to the other parent’s home at the time of transfer.

"[32] The second category is the parents’ conversations with [the child] about issues in this case which are reproduced in their affidavits. It is highly inappropriate for the parties to implicate their six year old child in this dispute in any way.

"[33] It is important to note neither party takes the position that the other party is an unfit parent (except, maybe, an accusation made about the respondent’s drinking, which I will address below). Even if there was such an allegation, the type of evidence described above reveals little, if anything, unusual about either parent’s interaction with their young child in the context of shared parenting.

"[34] Instead, I find these observations are being traded in a 'tit for tat' fashion. I am led to believe this kind of evidence is not uncommon in contested family cases. Common practice is not determinative of admissibility or relevance. 

"[35] I discourage parties from adducing this type of evidence which, I think, is a passive aggressive tactic. There is no blatant accusation of unfit parenting, but the evidence put forward by one parent is such that the other parent cannot resist answering because the statements or the inferences that could be drawn from the statements are inflammatory. The parties get drawn into a cyclonic battle of the affidavits, often enlisting friends or relatives to contribute more affidavits.

"[36] I must decide what is in the child’s best interests. In that context, each party’s view of what is best for the child and the facts on which that view are based may be helpful to my decision. What is of dubious relevance and questionable reliability is a person’s observation that on one or a few occasions a parent’s interaction with the child or the child’s reaction was less than ideal. Of no relevance is what a six year old said to a parent when that parent, inappropriately, talked to the child about the legal issues in this case."

I do like that phrase, a "cyclonic battle of the affidavits." In any event, at this point, the judge discusses the claimant's allegations about the respondent's drinking habits:

"[37] The claimant states the respondent 'appears to have an issue with alcohol' and that there is an 'obvious alcohol abuse issue'. She refers, among others, to an incident in April 2013 when she believes the respondent was 'grossly intoxicated' while [the child] was in his care. She claims to have confronted him about his drinking during their marriage and says it was a huge issue in their relationship. 

"[38] The respondent 'wholly denies' any problems with alcohol. He points out he is regularly tested for drugs and alcohol for his job. There is also an affidavit from the other person present during the April 2013 incident and that person disagrees with the plaintiff’s characterization of what happened and the respondent’s state of sobriety. 

"[39] The respondent questions the sincerity of the claimant’s accusation, asking why, if she truly believes the respondent has an 'alcohol abuse' problem, she had not sought different parenting terms. Either her concerns about alcohol prior to the relocation dispute were not serious enough to take action, in which case they are not material to this application. Or, she is exaggerating the incidents and her level of concern to try gain an advantage in this application.

"[40] Taking all of these circumstances into account, I find the allegation about alcohol abuse is unfounded. The allegation is serious and should not have been made."

At the end of the day, the claimant's position was rejected by the judge while the respondent's succeeded. He must have been the least be-spattered parent.

A Few More Points

I concluded "Why It Pays to Let Bygones Be Bygones" with a list of things you can do to improve the likelihood that you'll be successful in your court case, and you can see that the folks in B.A.S. v S.R.S. and A.M.D. v K.R.J. disregarded many of them. Their cases remind me of a few other things that need to be said about courtroom disputes involving children.

First, as I said, or at least implied, in my previous post, the court is unconcerned about allegations moral unfitness or character deficiencies unless they impact on a person's capacity or ability to parent a child. No matter how much problems along these lines trouble you, do not raise them in court unless:

• you are absolutely positive that the problem impacts the other person's capacity or ability to parent your children;
• the problem is one that other people in the general community would tend to agree is a serious problem which, if true, would likely impact the other person's capacity or ability to parent; and,
• you have evidence which proves that the problem you're complaining about actually exists.

Second, if you don't have one big problem that you can identify to explain why the other person lacks the capacity or ability to parent a child ("you're always drunk" or "you smoked pot while you were breastfeeding," for example), don't try to compensate by raising a bunch of small problems instead ("he left the child in the car once when he went to buy milk," "she used a naughty word in front of our five-year-old" or "he got drunk at last year's office party and used the photocopier in an inappropriate way"). I have seen affidavits that go on at a ridiculous length, cataloging one picayune issue after another in numbing detail. I appreciate the effort that goes into preparing such material, however it's important to know that this strategy never works.

Endless complaints about small problems do not have a cumulative effect that eventually equals the impact of a big problem, tipping the scales in your favour. Instead, the court, to be blunt, is likely to see you as a bit of a whiner who is prepared to complain about anything to get your way, and the force of your complaints will get smaller and smaller with each successive complaint. Eventually the tables may wind up turning in the other parent's favour if you come to be perceived as the parent who is obstructing the post-separation care of the child!

Third, people have a weird belief in the importance and relevance of character references. I don't know where this comes from, since nothing in the Divorce Act or the Family Law Act says "the winning parent shall be the parent with the most people willing to say nice things about that parent," but there does seem to be this odd reflex to run to friends and family the moment a parenting dispute seems headed to court.

There are a few problems with this approach, apart from the rather sad likelihood that the writing of character references and letters of support will bring an abrupt end to the writer's relationship with the other parent, including these:

• letters are hearsay, they are not proof that things said in the letter are true (if someone has something really important to say, get them to write an affidavit);
• most people are able to collect a pile of letters attesting to their fine qualities as a parent, employee or pet owner, and the fact that you've got a stack of them doesn't mean you're special;
• most letters are clearly partisan, and the weight the court will give to the happy words of an ally is less than the the weight it would give to the happy words of an objective third party; and,
• letters like this generally don't talk about the negatives known to the writer ("well, she does drink every now and then, especially in the early afternoon on school days, but on the whole she's a totally awesome mom") just the positives ("Harry is the most wonderful and wise parent I have ever met and absolutely radiates compassion and patience"), which seriously undermines their credibility and utility.

If you really want to improve your chances of "success," avoid tactics like these, focus on being an attentive and involved parent, admit the strengths of the other parent and take a mature and considered approach to your family law dispute that is aimed squarely at the children's best interests and the future functioning of the separated family unit.

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.

Rethinking Marriage: Beta marriages, renewable-term marriages and other interesting ideas

It will probably surprise no one to learn that the reason why marriage is presumed to be permanent in the Western world stems from the Catholic doctrine of the indissolubility of marriage, you know, from this line in the New Testament: "what god hath joined together, let no man put asunder." Canon law on the irrevocability of marriage was all well and good when our life spans topped out at 30 in the middle ages; surely if you'd be entitled to the McDonalds senior's coffee discount at age 25 you could manage a life-long commitment to someone. However, considering that life expectancy in Canada shot from 59 for men and 61 for women in 1920 to 79 and 83 respectively in 2007, the notion of a single, life-long relationship takes on a somewhat more ominous aspect.

Interestingly enough, despite our increasing longevity, our enthusiasm for marriage has not yet begun to wane, although the rate of unmarried long-term relationships is increasing at a pace three times that of marriage and the divorce rate is a healthy 41%. The national divorce rate had held at this level for the last decade or so, after two sharp increases that followed the introduction of the federal Divorce Act in 1968 and the removal of the provisions about fault and matrimonial misconduct in 1985.

In 2012, I was asked to provide a keynote speech on the future of family law for a course put on by the Continuing Legal Education Society of BC. In light of the decline of religiosity as a compelling social force, and its replacement by a sort of secular rationalist humanism, I suggested that in the not too distant future we might see a flourishing of alternative family arrangements such as:

• communalist families structures;
• polyamorous or polyfidelitous families; and,
• hive, creche and other cooperative approaches to the raising of children from multiple parents.

Given the rate of relationship breakdown, I also suggested that in the future we might see separation management aids such as:

• the ability to register as a non-couple, expressly renouncing the existence of a marriage-like relationship;
• property ownership and acquisition software to trace excluded property and family property;
• term-limited relationship contracts; and,
• separation insurance.

My presentation was surprisingly well received. However, it seems that I am not alone in my speculations. In a brilliant article for Time magazine, Jessica Bennett writes about a 2014 study by USA Network, yes the television network, on the relationship preferences and attitudes of millennials, those aged roughly 18 to 34. Bennett writes:

"They found all sorts of things: among them, that people cheat on the Internet (uh huh), that young people don’t think their relationships are like their parents’ (of course), and that everyone seems to have taken to the term uncoupling (yuck)."

Even more interestingly, Bennett notes that:

"Buried in the data was the revelation that almost half of millennials (43%, and higher among the youngest subset) said they would support a marriage model that involved a two-year trial — at which point the union could be either formalized or dissolved, no divorce or paperwork required. Thirty-three percent said they’d be open to trying what researchers dubbed the 'real estate' approach — marriage licenses granted on a five-, seven-, 10- or 30-year ARM, after which the terms must be renegotiated. And 21% said they’d give the 'presidential' method a try, whereby marriage vows last for four years but after eight you can elect to choose a new partner. 

"In total, nearly half of all of those surveyed, ages 18 to 49 — and 53% of millennials — thought marriage vows should be renewed, and nearly 40% said they believed the 'till death do us part' vow should be abolished. In other words: Beta marriages! ..."

These are some very interesting findings. They suggest that the generation just emerging into adulthood takes a starkly realist approach to relationships and recognizes not only the fact that some marriages fail but perhaps that some marriages should fail.

There were a number of ideas behind my suggestion of the term-limited relationship. At a basic level, I thought that a fixed term would give couples a regularly repeating opportunity to seriously consider the state of their relationship and reflect on their contentment, areas of dissatisfaction and areas for potential change and improvement. Too many couples, married or not, don't have regular check-ups with each other, and without the conscious airing of grievances, malaise and discontentment, irritation can fester, ultimately diminishing everyone's quality of life and encouraging the sort of seething resentment that makes the lives of divorce lawyers so comfortable yet so miserable.

I also thought that establishing a presumptive termination point would flip the normal dynamics of separation by requiring the consent of both to continue the relationship for another term. This might spare one or both parties from at least some of the blame and guilt involved in deciding to end a relationship; after all, it was going to end anyway. The fixed termination point would also allow couples to proactively address common trouble spots by planning leases, mortgage renewals, car loans, time share obligations and other commitments ahead of time.

The equality of opportunity to decline renewal might also empower a party to set the terms on which the relationship might continue. These terms might address irritating personal habits, responsibility for common chores, attendance at counselling, spending patterns and shared debts, relationships with others, means of conflict resolution and management of family obligations. In my experience, marriage and cohabitation agreements that call for a review are rarely actually reviewed, either because the couple have forgotten about the term or because the review may prejudice the survival of the relationship. In a fixed-term relationship, a review would be necessary for the continuation of the relationship.

Would term-limited relationships work in real life? Honestly, I don't know, but I think the idea is worth considering, particularly by younger couples. So, apparently, do the millennials. Here's the infographic from Bennett's Time article:

In case you can't read it, the results of the USA Network survey are essentially these:

• 10% of respondents would be interested in a multiple-partner relationship, in which a marriage could be to more than one person at a time (interestingly, the Family Law Act defines "spouse" in such a way as to permit more than one relationship that simultaneously qualifies as spousal);
• 21% would interested in a relationship that would last for four years, with an option of a further four;
• 36% would be interested in marriages in which the licence to marry is granted for fixed terms, and must be renegotiated to be extended; and,
• 43% would in interested in a trial relationship of two years, a "beta" marriage, after which the relationship could be formalized or dissolved.

Interesting ideas all. However, it is worth noting that the survey also discovered that 31% of respondents thought that marriage should continue to be permanent and the legislation allowing divorce should be rescinded.

I'll write about the Family Law Act and polyamorous spousal relationships in a future post.

My thanks to my friend and colleague Zara Suleman for bringing this interesting article to my attention. Thanks also to feedly.com for thoughtfully caching an earlier draft of this article, thus saving me from a painful re-write after an even more painful accidental deletion.

Communication Resources for Separated Parents

The end of a relationship between parents can often be a lot more difficult than the end of a relationship between a couple without children: people who don't have kids can just ride off into the sunset and have nothing more to do with each other, but people with children will be in each other's lives for the indefinite future. The constant contact separated parents have with each other delays the time it takes to heal from the separation and, more significantly, provides lots of opportunity for ongoing conflict.

Some degree of conflict is, of course, normal. But there is a small segment of the separating population — estimated at anywhere from five to fifteen percent — whose conflict is excessive and way out of proportion to their actual legal disputes. I have had clients, both paid and pro bono, who had been involved in a dozen or more applications prior to trial and a dozen or more applications following trial; these are people whose court papers occupied six or more 3-inch binders on my shelf and whose correspondence files were measured by the pound not the inch. 

Although the stress and cost of these high-conflict disputes are destructively taxing on the parents involved, in many ways the people most affected are the children, and what's alarming about this is that parental conflict can negatively affect children well into their teens and adult years, and sometimes permanently. I won't go into this in any detail since you can get a lot more information on parenting after separation from my wikibook, but children exposed to conflict between their parents:

• drop out of school at higher rates than other children;
• have higher rates of truancy and delinquency, and involvement with the criminal justice system;
• experience self-esteem issues and psychiatric disorders like depression and anxiety at higher rates than other children;
• have difficulty dealing with conflict, and often handle their conflicts as they have seen their parents managing conflict; and,
• have difficulty forming stable, trusting relationships as adults.

Given the severity of these potential consequences, anything separated parents can do to reduce their conflict, or to shield it from their children, is important and helpful.

One of the easiest ways parents can manage conflict is by changing how they communicate with each other. As a result, communication is one of the key subjects in parenting after separation courses, and is especially emphasized in the special parenting after separation courses offered to high-conflict parents in Alberta and Nova Scotia, and I am always on the lookout for resources and tools that can help parents communicate more effectively.

One of the best short resources I have seen recently is the Co-Parenting Communication Guide (PDF), produced by the Arizona chapter of the Association of Family and Conciliation Courts. This booklet offers plenty of good, practical advice and offers helpful tips for communicating by email, text message and telephone. My thanks to my friend and colleague Arlene Henry, QC for bringing this resource to my attention.

Making Plans: A Guide to parenting Arrangements after Separation or Divorce (PDF), published by the federal government, and Parenting After Separation: For Your Child's Future (PDF), published by the provincial government, both have helpful but brief discussions about positive communication skills and protecting children from conflict.

If you're looking for something more meaty, you might want to get ahold of two books by Robert Emery, a mediator and professor of psychology at the University of Virginia. Renegotiating Family Relationships: Divorce, Child Custody and Mediation and The Truth about Children and Divorce: Dealing with the Emotions so You and Your Children Can Thrive are excellent books and are written in easy to understand, accessible language. Both talk about the psychology of separation, the influence and effect of anger, managing conflict and putting children first. I read Truth many years ago, after I'd settled into life as a family law lawyer, and it provided me with many valuable insights that had an extraordinary impact on how I practiced family law.

Another useful book, directed specifically toward high-conflict parents, is Joint Custody with a Jerk: Raising a Child with an Uncooperative Ex, by Julie Ross, a counselling psychologist, and Judy Corcoran.

There are also a few internet-based tools that are designed to help parents communicate more clearly and more effectively. By and large, these tools keep calendars both parents can access, maintain to-do lists, and keep records of communication between parents. These include:

• Coparently, a Canadian product which works on mobile devices;
• Our Family Wizard, an American tool with lots of bells and whistles;
• 2houses, a co-parenting tool produced by a Belgian company;
• Cofamilies, another American product; and,
• ShareKids, an American tool that adds photo galleries to the usual services.

I don't endorse any of these tools in particular. Note that the American tools will of course be programmed to default the American holiday calendar, but can be adjusted.

Do you know of any other useful booklets, guides and tools? Please tell me about them in a comment to this post.

Peace Officer Enforcement Orders: Ontario Court Demands Alternative Remedies

"Peace officer enforcement" orders, sometime called police officer enforcement clauses, are frequently used in family law cases when one or both parties anticipates problems enforcing a parenting schedule in the future. These orders are provided for in the domestic relations legislation of most provinces.

The idea with orders like these is that in the event a child is wrongly withheld from a parent, the aggrieved parent will phone the police, the police will swoop in on the strength of the order, take the child and return the child to the parent who is entitled to be with the child. Unfortunately, it rarely works this way in real life. In an article I wrote for Canadian Family Law Quarterly that surveyed the views of family law lawyers across Canada, lawyers complained that: police sometimes refuse to enforce access orders, even when the order directs them to enforce it; some departments have a policy against enforcing access orders; police will generally do what they can to avoid enforcing access orders; and, the courts rarely do anything significant by way of follow-up, such as finding a parent in contempt of court. (For those of you with access to HeinOnline, the article is called "Enforcing Orders for Access" and the cite is 32:2 CFLQ 173.) The frustrations of lawyers are echoed by both judges and parents.

Patterson v Powell

In Patterson v Powell, Mr. Justice Pazaratz of the Ontario Superior Court of Justice was asked to endorse a final order that the parties agreed to, drawn from minutes of settlement executed a few months earlier. The order included these clauses:

12. The Hamilton Police Service, OPP, RCMP or any other police force having jurisdiction shall enforce the terms of these Minutes of Settlement. 

13. If either of the parties or any other person on their behalf, breaches any of the terms of these Minutes of Settlement, then a Peace Officer shall provide assistance to ensure that the offending party complies with its terms. Before enforcing the terms of these Minutes of Settlement, a Peace Officer must first ensure that the party has been served with a copy of these Minutes of Settlement. If not served, the party must be shown a copy of the Minutes of Settlement by the Peace Officer and be given a reasonable time to comply with the terms. If the party fails or refuses to comply with these Minutes of Settlement the Peace Officer shall do such lawful acts as may be necessary to give effect to its terms.

(This is pretty much along the lines of what would be said in a British Columbia peace officer enforcement clause under s. 231 of the Family Law Act.) The judge declined to make the order without an explanation, even though everyone agreed to it, and asked the parties and their lawyers to appear in court and explain why the clauses were necessary. The argument which ensued plainly gave the judge the opportunity to discuss, in a larger, more principled manner, the problems with peace officer enforcements orders generally and the rare circumstances in which such orders should be made, and Justice Pazaratz's decision in this case should be required reading for anyone thinking about applying for a peace officer enforcement order. 

Justice Pazaratz begins his discussion on the issue noting the two circumstances in which peace officer enforcement clauses are included in court orders:

"11 The first deals with the present: An existing situation. It usually involves some urgency (for example, an abduction) where a child needs to be retrieved from one party and transferred to the care of another. The objective may be to enforce immediate compliance with an existing order, or to quickly remove the child from potential harm or threat of abduction. 

"12 The second scenario deals with the future: a more general concern that on some unspecified date a party may not comply with a custody or access order, and that police assistance may be required to ensure the scheduled exchange of a child from one party to another. Typically, the extent and frequency of such police involvement cannot be determined ahead of time."

In my experience, this is entirely accurate. 

The problem with concerns about the future, even when they are based on past instances of non-compliance or past threats to withhold the child, is that they anticipate that someone will breach the order — a very serious action with potentially serious consequences. However, the judge observes that peace officer enforcement clauses are actually rather commonplace. (This was true in British Columbia too under the old Family Relations Act, however under the new Family Law Act, peace officer enforcement clauses are an extraordinary remedy reserved for circumstances when there has already been a breach of an order and the court is satisfied that nothing else will secure the breaching party's compliance.) Justice Pazaratz writes:

"17 ... As in the case before me, many lawyers and parties seem to regard such requests as both perfunctory and harmless. The implicit assumption seems to be that while all court orders must obviously be followed, there is reason to doubt that one or more of these parties will follow this particular court order.

"18 In that context, the police enforcement clause takes on the nature of an instant remedy for anticipated future contempt of court. A fail-safe precautionary measure 'just in case' somebody misbehaves ... the parties in this case want to know that there will be 'immediate consequences by calling police'."

Of course, as Justice Pazaratz observes, this begs a number of fundamental questions:

• Why does the court make orders about children if it is not confident that the orders will be obeyed?
• Why would the court give custody or access to a parent if it believes that the privilege will be abused?
• Why aren't creative alternatives to access problems — like parenting coordination, reducing the number of exchanges and requiring the use of intermediaries — required when compliance are anticipated instead of peace officer enforcement clauses?
• How does the court balance the benefit of enforcement against the distress caused to the children when the police respond to a dispute between their parents?

Dwelling further on this last point, the judge notes that children's perceptions of police will impact on their response to police intervention. Younger children, says Justice Pazaratz, know that the police deal with "bad people" and "sometimes take people to jail," which may cause them to worry that a parent is in trouble with the police. Older children may be embarrassed by the police presence, resent their parents for letting things get out of hand or feel increased pressure to ally with a parent.

This leads to the court's first conclusions on applications for such orders (important bits in bold):

"24 ... when ongoing police enforcement clauses are requested as a long-term compliance strategy ... courts should insist that parties take available time to fully canvass less destructive and more creative (perhaps even therapeutic) alternatives. Before considering a long-term or permanent police enforcement clause (presuming the latter is even available as an option) courts should require evidence of the potential positive and negative impact of police intervention on each member of the family unit — most particularly, the children themselves: 

a. Has the child already experienced police involvement in family disputes? 

b. How is the child likely to perceive or react to future police involvement? 

c. Will police presence during access exchanges increase pressure on children to ally themselves with one parent or the other? 

d. Does the child have any special needs or vulnerabilities? 

e. Have any members of the family had involvement with the criminal justice system or child protection authorities? 

f. Have there been previous police calls to the home relating to other complaints, such as domestic violence? Will this impact on dynamics if police attend for a more benign peacekeeper role during access exchanges? 

g. How are these particular parties likely to respond to interaction with police? Could any of the parties be regarded as being 'anti-police' — such that police intervention might inflame, rather than defuse the situation? 

h. Are there mental health issues the police may have difficulty recognizing or responding to? 

i. Is there any history of either party making unfounded complaints to police or other community agencies, for malicious or strategic purposes? 

j. Will police involvement facilitate or compound parental alienation? Will calls to police be used to manipulate children, instill fear, or garner sympathy? 

"25 Other questions need to be addressed: 

a. How often and how long is the police enforcement clause to be invoked? For a specified period of time, or indefinitely? Once or on an unlimited basis? Monthly? Weekly? Daily? Every visit? 

b. Should a party invoking a police enforcement clause be required to return the matter to court, or at least initiate a request for some alternative dispute resolution?"

The judge's second conclusion, at paragraphs 30 to 33 of his judgment, is that if the police are to be involved, they should be served with notice of the application and, whether given notice or not, when such orders are made the police have standing to apply to court to vary them or set them aside. However, if the police have any concern with such orders, they have an obligation to bring the matter, and the parties, to court as soon as possible.

Returning to the potential harm to children resulting from peace officer enforcement orders, Justice Pazaratz reviewed the principles enunciated in some 40-odd decisions on applications for peace offer enforcement orders from across Canada — which alone make His Lordship's judgment worth reading — for the propositions that:

1. Parental conflict is a major source of harm for children. 
2. Children should generally be protected from the "drama" of police enforcement of a parenting schedule.
3. The applicant for peace officer enforcement orders must prove that the order would be in the best interests of the children.
4. Factors such as a threat to the safety of the children or a breach of the peace may suggest that such an order should be made.
5. Peace officer enforcement orders may have a negative impact on children, and may frighten or traumatize them. It is not in the best interests of children that police be in attendance at exchanges between parents.
6. Such orders are an "undesirable tactic to give to either parent."
7. Peace officer enforcement orders are exceptional orders and should be made sparingly and as a last resort only. The court may refuse to grant such orders even when both parties consent to the order.
8. The court may, on the other hand, order that police must not be involved in access disputes.

What is to be done, then, when a parent breaches a parenting order? Says the court:

"73 If the non-compliance is isolated or rare, perhaps we should afford an opportunity for explanation and review before presuming the worst ...

"74 And if the non-compliance is chronic, we're likely dealing with a problem police can't fix anyway. At best, police enforcement amounts to a band-aid solution. If a parent is consistently defying a court order, there's a good chance the order itself needs to be changed to deprive the offending parent of the opportunity for more unilateral action or defiance.

a. If access is being denied, perhaps custody needs to be changed. 

b. If access is being abused, perhaps it should be reviewed, supervised or suspended. 

c. If neither party can behave themselves during access exchanges, perhaps both parties should have to attend a supervised exchange facility. It might be inconvenient for the parents, but it would be a lot less traumatic for the child. 

d. If we don't have confidence the parties will comply with final orders, perhaps we shouldn't be making final orders. Sometimes parents are motivated to behave if they know they'll be coming back to court — especially if they know they will be returning to see the same Judge."

After these comments on the options available to creative decision makers, Justice Pazaratz reaches his third set of conclusions, on the court's larger role in family law matters as the custodian of parties' disputes, burdened with a responsibility that extends beyond the moment of judgment to contemplate the future:

"77 ... judges have an obligation to craft comprehensive, holistic and durable court orders which have a likelihood of success and compliance. High conflict files need to be identified and given special attention. While disputes may inevitably arise, courts have a responsibility to anticipate problems and build-in dispute resolution mechanisms — rather than hand the mess over to police to sort it out. 

"78 If a judge anticipates future disputes or non-compliance, the court may wish to remain seized of the matter, and establish a framework to quickly deal with disputes — including contempt proceedings — to ensure that the parties clearly understand expectations and consequences. 

"79 In the absence of ongoing judicial intervention, and serious consequences for disobedience of court orders, long-term police enforcement clauses may prove to be both ineffectual and potentially counter-productive. Non-compliant parents are unlikely to be influenced by repeat police visits to their homes; but children are likely to be deeply (and negatively) influenced."

Needless to say, the parties' consent application for a peace officer enforcement order was dismissed as Justice Pazaratz was not prepared to "rubber stamp" — his words — their minutes of settlement.

"82 While it's reassuring that neither party wants to have to come back to family court, it would be more reassuring if they could agree upon a civilized and child-focussed method of addressing custody/access problems which they seem to anticipate."

Conclusion

This judgment is one of those rare, wonderful judgments, treatises really, where the facts of a particular application motivate a judge to provide a general discussion on a particular issue or problem, often one that has been on the judge's mind for some time. Similar judgments that spring to mind are the decision of Mr. Justice Bouck of the British Columbia Supreme Court on the evils of summary trials in Chu v Chan, and the decision of Associate Chief Justice Rook of the Alberta Court of Queen's Bench on freemen-on-the-land in Meads v Meads.

In Patterson v Powell, Justice Pazaratz demands that the bench and bar pay much greater attention to the frivolous use of peace officer enforcement orders. He observes that such orders skeptically imply that the parties will be unable to work through their disagreements and that one or both of them are unlikely to comply with its terms, and that when peace officer enforcement orders are made, their execution risks entrenching the parties' conflict and causing serious, long-lasting harm for the parties' children. Where problems surrounding a parenting schedule seem likely, Justice Pazaratz asks that alternatives to peace officer enforcement be considered first, including requiring parenting coordination, supervised exchange of the children and the court seizing itself of future disputes; peace officer enforcement orders must be reserved as a last resort.

When the court is asked to make a peace officer enforcement order, the applicant should provide evidence that:

1. there is an immediate problem that the police must rectify;
2. the safety of the children is threatened; and,
3. the order is in the best interests of the children rather than the convenience of the parties.

The court hearing the application must consider the following circumstances in deciding whether to make the order sought:

1. Has the child already experienced police involvement in family disputes? 
2. How is the child likely to perceive or react to future police involvement? 
3. Will police presence during access exchanges increase pressure on children to ally themselves with one parent or the other? 
4. Does the child have any special needs or vulnerabilities? 
5. Have any members of the family had involvement with the criminal justice system or child protection authorities? 
6. Have there been previous police calls to the home relating to other complaints, such as domestic violence? Will this impact on dynamics if police attend for a more benign peacekeeper role during access exchanges? 
7. How are these particular parties likely to respond to interaction with police? Might police intervention might inflame, rather than defuse the situation? 
8. Are there mental health issues the police may have difficulty recognizing or responding to? 
9. Is there any history of either party making unfounded complaints to police or other community agencies, for malicious or strategic purposes? 
10. Will police involvement facilitate or compound parental alienation? Will calls to police be used to manipulate children, instill fear, or garner sympathy? 
11. How often and how long is the police enforcement clause to be invoked? 
12. Should a party invoking a police enforcement clause be required to return the matter to court, or at least initiate a request for some alternative dispute resolution?

Although British Columbia's new legislation imposes important additional requirements that must be met before peace officer enforcement orders are made, Justice Pazaratz's learned and sensitive discussion on the subject is an important reminder about the questionable utility of such orders and of the potential harm they may cause to the parties and their children.