Save the Date! New Course on Difficult Family Law Issues Coming to Vancouver

A new one-day course on difficult family law issues, "A Rock & A Hard Place: Complex Issues in Family Law Practice" is coming to the Pan Pacific in Vancouver, British Columbia in April. The course is being put on by the Trial Lawyers Association of BC and is being chaired by lawyers Magal Huberman and Zara Suleman.

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

Family law practice can be challenging. Sometimes (or often) we can have files that have no easy answers. TLABC's 2016 Family Law Seminar A Rock & A Hard Place: Complex Issues in Family Law Practice is designed to address some of the more advanced issues in family law. With problems to solve that are as diverse as our clients, we benefit from the enriching perspectives of the judiciary, family counsel, criminal lawyers, Crown counsel, community advocates, police and the Ministry of Justice.

Faculty include:

• Megan Ellis, QC and Bill Story, noted Vancouver family law lawyers;
• The Honourable Judge Patricia Bond, from the Surrey Registry of the BC Provincial Court;
• Professor Margaret Jackson from Simon Fraser;
• Vicky Law from Battered Women's Support Services;
• Dr. Susan Gamache, a marriage and family therapist based in Vancouver;
• Jack Hittrich, a noted Surrey family law lawyer; and,
• Penelope Lipsack from the BC Ministry of Justice.

Topics include:

• family violence and projections orders;
• using counselling and collaborative tools in litigation; 
• interjurisdictional issues in custody matters; and,
• allegations of child alienation.

Here are the details...

Date

22 April 2016

Place

Pan Pacific Hotel, Vancouver

Price

$111.60 to $471.60, varying depending on membership status with TLABC and year of call; additional discounts available to articled students and law students

Register

www.tlabc.org

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

Important Study on Views of the Child Reports: Call for Participants

Rachel Birnbaum, a professor of social work at the University of Western Ontario, is leading a project examining the experiences of lawyers and mental health professionals who prepare views of the child reports, together with Nick Bala, a professor of law at Queen's University, and the Canadian Research Institute for Law and the Family.

We are looking for the input of Canadian family law lawyers and mental health professionals who prepare views of the child reports by completing a relatively short online survey. 

The results of this research may be used in research publications and presentations by Dr. Birnbaum, Professor Bala and the Canadian Research Institute for Law and the Family about children's participation in family justice processes. No identifying information will be collected from respondents and participation is of course entirely voluntary.

Survey

If you are a family law lawyer or mental health professional practicing in Canada who prepares views of the child reports, please log on to the survey at:

http://fluidsurveys.com/surveys/rbirnbaum/views-of-the-child-reports/.

Participant Information

Principal investigator

Rachel Birnbaum, Ph.D, RSW, LL.M.
Associate Professor,
University of Western Ontario, London, Ontario
800-265-4406, x 4431
rbirnbau@uwo.ca

Co-investigators

Nicholas Bala, J.D. LL.M.
Professor,
Queen’s University, Kingston, Ontario
613-533-6000, x 74275
bala@queensu.ca 

John-Paul Boyd, M.A. LL.B.
Executive Director,
Canadian Research Institute for Law and the Family, Calgary, Alberta
403-216-0340
jpboyd@ucalgary.ca

Invitation

This is your invitation to participate in a study that involves research to explore the benefits and challenges of children’s participation in parenting or custody disputes by Views of the Child reports, also known as Voices of the Child reports and/or Hear the Child reports. The extent to which Views of the Child reports effectively facilitate children’s participation in parenting or custody disputes and how such reports are carried out varies across Canada.

We would like to learn more about your views and experiences with these reports and ask that you complete an online survey, which should take no more than 30 minutes to complete and can be done at your convenience.

Ethical considerations about completing this survey

The benefits to you for participating in this study will be that you will contribute to the small, but growing body of research knowledge regarding these types of reports and their impact on children’s participation in family dispute resolution. We do not foresee any particular risk or harm to you as the surveys will be kept confidential and no data will be recorded that could link you to any information obtained. You can as well choose to answer all, some or none of the questions as you like.

Confidentiality

We will not ask you for any information that could be used to identify you; however we will ask questions about your gender, province of practice and professional background for demographic purposes. All of the information collected will be used for educational and research purposes only, and will be kept confidential to the extent provided by laws of Canada. If any reports or publications are produced using the results of this survey, the information collected will be reported in aggregate form only without any identifying information.

Fluid Survey is a Canada-based online survey system that allows individuals to complete questions confidentially and stores its data in servers located in Canada. The information you provide will be entered into a separate statistical database that collects aggregate data only, without any identifying information about you. All information and data will be held securely by Dr. Birnbaum.

Participation is voluntary

Your participation in this research project is completely voluntary. We know of no negative consequences for choosing to participate in the survey or withdrawing from the study at any point. You can answer all of the questions, some or none.

Publication of results

The results of this study may be published in professional or academic journals or presented at conferences. A summary of the findings of this study, when completed, will be available from Dr. Birnbaum upon request.

Whether or not you have completed the survey, if you would like to receive a copy of a summary of the findings for the study, please contact Dr. Birnbaum at 800-265-4406, x 4431 or by email at rbirnbau@uwo.ca.

Contact information and ethics clearance

If you have any questions about this study or require further information, please contact Dr. Birnbaum, using the contact information provided above. This study has been reviewed and received ethics clearance through the Research Ethics Board at King’s University College, University of Western Ontario, London, Ontario.

If you have any questions or concerns related to this research, please contact the Associate Academic Dean of King’s University College: 

Dr. Renée Soulodre-La France
Associate Academic Dean.
King’s University College, Western University, London, Ontario
800-265-4406, x 4424
rsoulodr@uwo.ca

Thank you for your consideration. Please keep a copy of this information for your records if you decide to participate.

Cloud Computing and the Family Law Lawyer

The Law Society of British Columbia has adopted changes to the Law Society Rules to address cloud computing for lawyers who store, or are considering storing, practice data in the cloud; the changes are based on the recommendations contained in the final report (PDF) of the Cloud Computing Working Group. Cloud computing allows data like emails, contact lists, photographs and so forth to be stored in a remote server and synced between various devices like a smartphone and a laptop, so that when you change something on one device you change it on all of your devices. Cloud computing can also allow you to store more important files, like word processing documents and spreadsheets.

 The Working Group identified a number issues raising significant concern with cloud computing, including these:

• privacy and the security of stored data from third party intrusion;
• lawyers' compliance with protection of privacy legislation;
• lawyers' compliance with Law Society auditing standards for electronic files;
• security of stored data from loss in the event of service failure;
• the reliability of the service provider;
• security of stored data from seizure by service provider;
• the status of stored data after termination of service provider; and,
• providing notice to clients as to where their data is being stored.

Perhaps most importantly, the Law Society has also adopted a thirteen-page (thirteen!) checklist (PDF) for lawyers considering using cloud computing. Among other things, the checklist asks lawyers to consider whether there are any laws, including federal and provincial privacy legislation, that restrict placing client data in cloud servers located or accessed outside of Canada. This last little bit strikes me as being especially worthy of note given that the USA PATRIOT Act (the title of the act is an acronym) allows US government agencies to rummage through electronic communications and gather data from US and non-US citizens without the necessity of probable cause or judicial oversight.

Now, I would expect that most family law lawyers don't rely very much on cloud computing, or at least not knowingly. (Here's a tip: if you can access a file on your office computer from home without logging into your office network, you are probably storing that file in the cloud.) However, DivorceMate has recently rolled out a version of its very popular support calculation program that relies on cloud technology to allow users to run numbers on the fly, in court or in an interview, and relies on Microsoft's cloud technology... which means that the data is stored on Microsoft's servers in the US, backed up by Microsoft in the US, and is therefore available to government agencies in the US should they care to look at it.

This raises some pretty serious concerns about client confidentiality. I spoke to the DivorceMate people this summer about the cloud issue and they said that they were aware of the problem. Although they don't have a  work-around for the storage problem yet, they did note that you can access their software in the cloud and simply elect not to save your calculations, so that the data doesn't wind up being stored Microsoft's servers. They may have another solution by this point.

Amendment to Code of Conduct Allows Lawyer Mediators to Give Advice and Handle Joint Divorces

The latest quarterly amendment update (PDF) to the Legal Profession Act, Law Society Rules and Code of Professional Conduct has been released to lawyers by the Law Society of British Columbia.

Amid the usual folderol that can be safely ignored by all except those in trouble with the Law Society are two important amendments to the commentary to s. 5.7 of the Code of Conduct, titled "Role of mediator."

1. The comment that lawyers should not give advice when acting as mediator has been rescinded. In its place, lawyers are referred to Appendix B of the Code on family law mediation, arbitration and parenting coordination which contains this modest stricture at s. 3: 

A lawyer who acts as a family law mediator or arbitrator or parenting coordinator for participants who are unrepresented must:

(a) urge each unrepresented adult participant to obtain independent legal advice or representation, both before the commencement of the dispute resolution process and at any stage before an agreement between the participants is executed; 

(b) take care to see that the unrepresented participant is not proceeding under the impression that the lawyer will protect his or her interests;  

(c) make it clear to the unrepresented participant that the lawyer is acting exclusively in a neutral capacity, and not as counsel for either participant; and  

(d) explain the lawyer’s role in the dispute resolution process, including the scope and duration of the lawyer’s powers. 

2. A new comment has been added to allow mediators to act for both parties in a joint divorce action.

A lawyer who has acted as a mediator in a family law matter may act for both spouses in a divorce action provided that all relief is sought by consent and both parties have received independent legal advice in relation to the matter.

Both of these amendments are aimed at dealing with the conflict issue that is believed to arise when lawyers act as mediators, namely that in "acting" simultaneously for two people opposed in interest the lawyer is in a conflict of interest, which had previously been addressed by the fiction of the law society's rule that lawyers must not give legal advice and must instead give only legal information. The reality of practice is that the lawyer mediator gives abundant "legal information" to both parties as an essential part of the lawyer's toolkit to reach settlement; it is a relief that the fiction has been recognized and dealt with.

The same conflict issue arises when the lawyer mediator is asked to get the parties to a mediation divorced, which is often a more or less a natural follow up to the lawyer's settlement of the parties' dispute. There are two types of basic divorce claim, the "sole divorce" where one spouse takes the initiative and sues the other for a divorce, and the "joint divorce" where the spouses cooperate and ask the court for the divorce together. The sole divorce is the usual way of doing things when a lawyer is involved. The joint divorce, however, is both faster and cheaper as you needn't pay for a process server or wait for the expiry of the reply period. However, a lawyer cannot "act" for the parties to a joint divorce as they are, theoretically, opposed in interest; hence the conflict. As a result, lawyers would typically offer to prepare the forms for the couple but not go on record as acting for either of them which, while very practical, simply ducks the issue and fails to obviate the conflict. The amendment allowing lawyer mediators to handle joint divorces is timely and most welcome.

Life as a Family Law Lawyer: Malevolent instigator of conflict or thoughtful advocate of settlement?

Over the winter holidays last year, I happened to comment on a private member's bill, Bill C-560 tabled by Conservative MP Maurice Vellacott, that would have amended the Divorce Act to establish a rebuttable presumption of shared custody (the equal division of children's time between their separated parents). I said some nice things about the bill — it would replace "custody" and "access" with less adversarial, more child-centred language; it would require lawyers to discuss counselling, parenting coordination and arbitration with clients involved in parenting disputes; and, a parent would be required to give 30 days' notice before moving — but I also said that a one-size-fits-all presumption about custody is not in the best interests of every child and that, in my view, the presumption the bill called for was wrong-headed.

Over the next few weeks, after a reader posted a call to arms on a men's rights website, I received a surprisingly high volume of comments. Comments are great, don't get me wrong; I welcome debate, disagreement and discussion, and the more the merrier. However, a lot of these comments ducked the issues I'd raised about Bill C-560 and attacked me personally, and family lawyers in general, for opposing the bill. Here's a sampling:

· Surprise, surprise! A lawyer doesn't like this bill and has misrepresented it. How would you hold custody over opposing counsels head if this went through? It certainly will be hard to draw out, expensive and desperate fights if both parties are on equal footing, won't it? 

· Perhaps being a Family Law lawyer you are just used to presenting baseless assertions. 

· I read this in its entirety and its a blatent attack piece. Misrepresentation at its worst. By who else but a Family Law Lawyer. By the way this is the group who stand to lost the most if such an ammendment were to be made into law. Compensation cowboys, the scum of the earth. These liars makes the world a worse off place. 

· "However, from my perspective as a family law lawyer" In other words, from the perspective of an interested party, ie someone who has a keen interest in protecting your source of income.  

· "I act for men and for women and have no particular bias one way or the other" Meaning what, exactly? Does this mean that when you have a woman for a client you'll do everything to screw over her husband, and vice versa?  

· Looks like ol' JP and his cohorts here stand to lose a significant amount of income if equal parenting amendments pass. 

In other words, family law lawyers oppose sensible presumptions like the one proposed by Bill C-560 because we make our living provoking conflict between parents.

From my experience as a family law lawyer, this sort of argument is absolute rubbish, and I said as much in my replies to these comments. Here's what I said to the "interested party" fellow:

"I'm afraid you've got it wrong. I'm not an interested party, at least not in the sense you mean. I act for men and for women and have no particular bias one way or the other.  

"I'm also afraid that you are a bit mistaken [in] your assumption that family law lawyers drive conflict. Although some do to be sure, the vast majority of us, at least in Canada, are interested in obtaining just results as efficiently as possible. Who do you think is driving the increased use of mediation, collaborative settlement processes and other out of court solutions? In Canada it is lawyers. I and the vast majority of my colleagues are interested in achieving a reasonable settlement for our clients, not dragging things out through to trial.  

"Frankly, the profit motive you allege is irrelevant as well. Family law is a difficult, trying area of the law. If you choose to practice this area of the law, however, you find yourself drowning in work. When I was in active practice, I was referring two to five people a day out to other lawyers, not because I didn't like them or their problems, but because I simply couldn't take any more work. And trials, by the way, are extremely unpleasant. Twelve-hour days and working on weekends for the duration of a ten-day trial is no fun at all. It is horrible work."

This past July, I had the unique opportunity of sampling of the views of 167 judges and lawyers attending a national family law conference through a survey designed and organized with two prominent academics and the Canadian Research Institute for Law and the Family. Among other things, we asked a handful of questions about respondents' experiences with and opinions on shared parenting and shared custody, including this question:

Do you support enactment of legislation to amend the Divorce Act to create a presumption of equal care or residential time? Please explain.

To all those who believe that family law lawyers are unprincipled, unscrupulous, money-grubbing, conflict-fomenting vultures who provoke parenting disputes to line their own wallets regardless of the emotional, financial and social consequences to their clients, I present our respondents' replies to this question, edited to remove substantially similar comments in the vain hope of keeping this post to a reasonable length; my remarks continue afterward:

While the goal is laudable, I am concerned that many parents will get shared parenting on paper which will reduce their child support, and then not step up to the plate, leaving one of the parents with most if not all of the responsibility with much less income. 

There is a huge difference between saying that each parent will have parenting time, and then determining how much is appropriate, and saying that there should be a presumption of equal amount of time. ... The parenting time concept provides flexibility for the Court to determine what is in the child's best interest rather than taking away flexibility which a presumption would do.  

The current legislation is situation specific. Looking at each family situation specifically and tailoring the result to what works best for that family and situation is preferable to making one result for all situations. Parents can have a shared parenting arrangement if they so choose, it does not need to be legislated.  

Best interests test should always be the determinant of the issue, without a presumption.  

While not codified, there seems to be a presumption in law that mom will have the majority of care/residential time. There should be no presumption or at least an equal presumption.  Fathers are more involved this generation.  

Already many people presume that there should be equal parenting time and this would create a stronger platform for them, even when shared parenting may not be appropriate.  I believe that the court should still look at what is in the child's best interests.  A legislative presumption may make it too easy on judges to make a less detailed examination of the circumstances.  

It's not always in the children's best interests to have equal care.   

Yes, maybe. It might help reduce those files ... where parties are very entrenched about parenting time right out of the gate.  Stereotypically, moms think "I've been the one at home, so dad can't do it by himself" rather than think "yeah, dad can step up to the plate and take a more active role and wouldn't that be beneficial for the children going through this difficult transition". Both parties need to change their roles, moms need to reduce parenting time and increase employment efforts and dads may need to reduce employment efforts so that they can increase parenting time.  If it's the presumption of shared time then perhaps the parties will start there and then figure out logistically how close to shared can they can actually achieve month to month.  

It is preferable to avoid any presumption around parenting, families are unique and should be treated that way.  

We aren't there yet as a society. In my experience, the majority of custody cases are not "shared custody" cases  

I think it would take a lot of the heat out of family law disputes if there was a presumption of equal parenting. it may also smooth out the often unequal balance between parents created by different personalities or parenting styles which disadvantage, for example, a parent that disciplines. I think it would counter the move to involve children more in parenting disputes with the increasing use of lawyers to represent them.  

The test is and should be best interest of the children, considering what their experience with each parent has been prior to separation, how available and capable each parent is to provide full care after separation, and the needs of the children.  There should be no presumption of equal care or residential time but a careful analysis of the family system and dynamics focusing on what is best for the children. I think litigating for shared parenting is an oxymoron!  

the best interests of the children is still a good test and provides the flexibility that the court needs in individual cases  

I believe this could cause problems.  However, I would not be opposed to a presumption of "Joint Custody" understood as joint Guardianship and entitlement to decision-making and whatever degree of assuming rights and responsibilities of parenting.    Shared Parenting in the sense of some form of 50/50 residential care and control can not really be assumed since it is not always reasonable, viable, etc.  

Some child care experts argue that shared parenting isn't always in child's best interest. Sometimes better to have one place they call home with consistency  

it is appropriate to make parenting arrangements based on what is best for each particular family.  Beginning with a presumption of equal residential care means moving away from that standard  

Both parents should be responsible for the care of the children and have the opportunity for the children to reside with them  

This presumption is not in line with the best interests of the children in all cases.  A detailed examination of the parenting situation is the best method of determining the best parenting arrangement.  No presumptions ought to be in place, either in favour of shared parenting or otherwise.  If there is a genuine concern that not enough cases are resolved by way of shared parenting, this ought to be addressed through education of the bench and bar regarding the situations in which shared parenting is appropriate.  

Presumptions are not particularly useful. They promote positional stances that do not assist parents to craft a post separation parenting regime will be best for their child or children. Unless there is a good reason for it, and it is handled such that transitions are seamless and conflict free, shared parenting places too much unnecessary stress on children. I am not sure I as an adult could stand or thrive living in two different households for whatever period of time, be it week to week or two weeks and two weeks or the absolute worst; let's move every 3 and 4 days to satisfy the adults. This brings living out of a suitcase to a whole new level.  

I do, however, the simple notion of such a presumption may not work well in practice.  While it may be "presumed" I have seen numerous situations where same is nothing but a sham designed to affect support.  The interests of the children in NUMEROUS cases are secondary at best.  

In many situations equal care or residential time is not in the best interest of the child. Further, what age does this start at? There are studies that show equal care or residential time negatively affects a child's development.  

I believe that the parenting arrangements should simply be looking at the children's situation, and the parents' situation, and determining from there the best schedule.  Many intact families don't work based on each parent spending 50% of their time with the children, so why would it be appropriate to have parents after separation be presumed to share parenting when they likely haven't done so while intact?  

It would be a terrible mistake as the experience in California has shown. Each case is different and must be evaluated  

Presumptions have no place in the formulation of the best interests of the child.  This is fact dependent and should be based on a holistic view and the unique factual circumstances implicit within the determination.  

The focus needs to remain on the children in each particular case, and what is in their best interest.  It should not be presumed that it is in a child's best interest to transition to a new residence every few days.  If the goal is co-parenting (which does not require shared parenting or joint custody or equal time), there needs to be educational programs provided to give parents the tools they need to cooperatively parent post-separation, alternative dispute resolution services available, readily available and affordable parenting coordination, and mental health support/counseling services available.  

This is a step backwards from a child centred test to a focus on parental rights. Children are not property. Parents need to focus on their "responsibility" to meet children's needs, not their "right" to parent.   

I’m  not certain about this; a STARTING POINT, maybe, but it can create problems for  people in abusive relationships to have the burden of rebutting a presumption  

simply does not reflect reality, and would lead to endless litigation  

This will simply cause more litigation - if the parties can agree or there is a past practice of a shared physical parenting regime the court will order this or the parties will agree  

Not all cases deserve that presumption, where there has been abuse or an incapable parent or not in child's best interests   

An equal care presumption could be dangerous in certain circumstances. I believe it is more prudent to protect children who may be in a dangerous situation from the outset.  

qualified yes - as long as the best interests of the child prevail  

The focus must remain on what is in the best interests of the individual children. It is also my understanding from recent social science literature that children are not doing as well in so-called '50/50' arrangements as was hoped.  

The premise is admirable but not necessarily in the best interests of the children.  

in situations where parties were in the same home sharing the responsibilities I think there ought to be an examination of whether the parties were active parents before an assumption is made that just because they lived in the same home they should share equally in parenting time and responsibilities   

I think every child is different.  Some children do not function well in this type of schedule, and it would lead to substantially more litigation, in my opinion, if we had to start with that presumption.  As well, there continue to be a number of parents who cannot or should not have that type of parenting responsibility.  While there would certainly be situations in which it would be helpful, I think that more often than not, it would make things harder.  I also think that for those parents who truly are not able to be an equal parent, either due to their scheduling, or their abilities, it would create a negative stigma on those parents to give "primary care" to the other parent.  

There should be a rebuttable presumption. It would lead to more settlements  

This will help to eliminate the preliminary skirmishing upon breakdown of the relationship, which often involves causing false criminal allegations to be made.   

This is unrealistic for many people; it's an ideal, but not realistic for working class families tied to specific work schedules. There ought to be no presumption in any particular direction, in my opinion.  

Based on the social science literature I have read and my own anecdotal experience, I think that most children need a primary care giver and a "home base" when children are of a young age.  Too often my clients tell me that their children tell them they need to spend equal time with both parents because it is "fair".  I think that is putting the priorities of the parents ahead of the needs of the children.  

I am not a fan of presumptions.  Each case is unique and should be determined that way.  I see many parents, usually fathers, seeking shared parenting to reduce support obligations and this type of presumption could make that easier without properly considering the best interests of the children.  

Children should benefit from an equal relationship from both parents unless circumstances require otherwise  

Maximum time as is in the interests of child is preferable, because it recognizes that not all children do well going back and forth between two homes.  The week on/week off works for some, but for other children it causes a great deal of stress to not have a home base, to only be able to see friends in alternate weeks. It only works where the parents are able to look at the child's schedule, interests, etc., and allow her/him to have the same life in both homes.  

I don't think legislated presumptions are helpful, particularly if the focus of the enquiry is the best interests of the children.  

Given the unique circumstances of families and children, a presumption where children are involved is in my opinion not appropriate.  

the presumption the mother is the more suitable parent no longer applies  

the concept or philosophy of "equal" time can be achieved in many ways, some of which do not mean equal physical shared time.  It sometimes does not make sense to be trying to "equally" share 24 hours.  However, with such a presumption, conflict between the parties is immediately ignited as most lay persons see equal as being "alternating" weeks or "alternating" days.  Lawyers and professionals and judges should be creative enough to look at different ways of achieving "equal" or other residential arrangements that maximize contact and, frankly, are more in keeping with what the parents actually want or can manage.  

It removes an element of fighting.  

It is often not in the best interest of the child especially when the children are very young. ... This equal care is more about the parental rights and less about what is in the best interest of the child. Let’s use the premise of best interest of the child to determine parental time and not start with the premise that both parents should have equal time.  

I strongly oppose any departure from the best interests test.  Without this there would be an even stronger wholesale drive to parallel parenting which is not generally a particularly desirable structure for raising a child.  

There should be no consideration of anything but the individual child's best interests. Shifting to a presumption changes the focus from the rights of the children to the rights of the parent. 

The majority of families before divorce continue to be "traditional" with one parent doing most of the child care. I think it is bad for kids to be forced to spend even close to equal time with a parent who is ill-equipped to look after them properly.   

A presumption of equal care would not be a child centred approach and such a presumption would mean upheaval for children in circumstances in which children are already experiencing increased stress and anxiety.   

I don't think we can improve on the "best interest" test. Many families, when left to order their own affairs, do so in a way that has the children spend more time with one parent than another pre-separation. Why force the children into an artificial arrangement just because one parent wants to divide children the same way as we divide property?  

I act for many women who have been in relationships in which there has been domestic violence. For many of them an incident or incidents of domestic violence have been the reason for the breakdown of the marriage ... They are often disadvantaged at the time of attempting to negotiate the terms of care and residential time regarding their children both emotionally, financially and terms of power dynamics. Many are not in an emotional or economic situation to rebut a presumption of equal care or residential time even if it would be against the best interests of their children.  They neither have the means nor emotional energy to pursue litigation to rebut such a presumption. In these cases it would be detrimental to both mothers and their children for such a presumption to exist.  I have seen situations in my practise where an agreement to joint custody and guardianship has been used as a vehicle for harassment and control.  

It may reduce the importance of "status quo" immediately after separation which can cause fights  

It would create more litigation to overturn the presumption.  the Child Support guidelines have already created more litigious attitudes because of the effect of shared parenting on support.  

It is inaccurate in most circumstances.  One parent, still primarily the woman (but that is changing somewhat) assumes the bulk of the parenting responsibilities.  It will place women who are trying to leave situations of domestic violence in an even more vulnerable position than that which they already face when trying to end such relationships.  I also have concerns that we are confusing time with children as the basis of parenting.  While this is a core concept time share is not shared parenting.   Again I see women entering shared parenting regimes in which they take less child support (that they need), no spousal support because they won't litigate for themselves, and then continue to bear all the parenting responsibilities while the children are living an unstructured life that is prone to manipulation and increased conflict.  

this is what people want as many dads especially miss out on an opportunity for shared custody simply because they moved out of the family home and created a status quo of primary care to mom.  

Best interests of the children should always be the sole consideration.  It should not be an uphill battle for a parent to seek to have primary care when his or her ex is not a suitable parent.  

There should be no presumption it needs to be reviewed on a case by case basis. Leaves too much room for the bullies in the relationship to dominate (i.e. using the presumption because they know the weaker person will not fight)  

That has little to do with the best interest of the child which I believe is still the proper focus for the court. It also raises a support issue of significant concern in many cases.  

All families are different.  The presumption should be to the status quo of how children were parented during the marriage.  The goal is to focus on the children and their needs not to create a presumption of "equal division".  

I am wary of presumptions, and the prospect that that will reduce the scrutiny  and attention paid to this important issue.  

children have a right to equal access to each parent  

There should be no presumptive distribution of parenting time, whether shared or anything else. A one-size-fits-all approach will work well for some children but be disastrous for others; plus the potential for extremely adverse outcomes on initial chambers applications is extraordinary.   

Equal time with both parents is disruptive to the routine of young children and I find most parents who are wanting equal time are doing it to get out of paying the full amount of child support and to control the other ex-spouse.  Older children (13 and older) have a better ability to decide if they want to spend equal time with both parents.  Young children need the stability of having one home, with one set of rules.  

While I realize that hashing it out in court is not good for children, that presumption could have a chilling effect on claims for primary residence or unequal care regimes even where that is in the best interests of the child, particularly where the opposing parent is more domineering or litigious.   

I think that each case needs to be addressed on its own merits with the assistance of third parties where necessary.  I worked as a representative for children for 18 years.  The issue that came up time and time again was that while the children often wanted to be with both parents, the children wanted to have a "home base".  This is a very difficult issue which needs addressing.  The sharing of the children has to be as much about what is best for them and not so much what the parents think is best for the parents.  If the relationship between the parents will foster and improve the children's development and lives then that is an ideal case for shared parenting.  But more often than not, the issue is more about power and control than it is the child's best interests.  

It does not take into consideration the development of the various age groups. It seems that the legislator is more worried about the parent`s rights than what is in the best interest of the children. We are now having discussions as to what is appropriate for an infant and a toddler and it seems that it is imperative to their development that they be mainly with one parent as to form an attachment. Shuttling back and forth is not the answer.  

This will inevitably have the result that some women will bargain away their financial rights in order to maintain a pre-existing primary care 

Absurd idea...one "size" does not fit "all"...in addition that approach does not take into account the unique circumstances of each family and that family's children.  

our Judges already take the maximum contact factor very seriously and I believe if a presumption is created we will have impractical results and the power struggles will just find another forum 

pre-separation, mothers are still the main care giver.  Why change the dynamic for the child?   In my experience many fathers want 50% of the time and no responsibility. E.g.  Who books medical and dental appts.  Who does the leg work of finding the child care.   Equal residential time does not reflect reality for the child.  

Subject always to the best interests of the children, this should be the presumption     

In many families one parent is the principal parent and this often does not change in a divorce; child should have a right to the parenting he is used to.  

this presumes that both parents are capable and interested in parenting on an equal basis. We know from many significant reports and studies that even in shared parenting arrangements the mother continues to take on all of the primary parenting tasks - doing so most often with a reduction in child support.  

This is not always in the best interest of young children; difficult in high conflict cases and in cases where there is domestic violence.

This struck me as an interesting, and telling, range of comments. What I took away from reading these remarks is that, regardless of respondents' position on the shared custody proposal, the lawyers and judges we surveyed generally:

• put the interests and needs of children before the interests of their parents;
• placed a high value on the settlement of parenting disputes;
• sought to defuse conflict and viewed litigation as a last resort;
• demonstrated an awareness of the traditional and changing roles of mothers and fathers, and of the impact of family violence on parenting; 
• supported shared custody when best for the children; and,
• had given serious and considered thought to the merit of a presumption of shared custody and its implications for their clients.

I have always been tremendously proud to practice as a family law lawyer, and always felt terribly privileged to work with colleagues who were so highly ethical, principled and skilled in an area of practice that is demanding at its easiest and horribly fraught at its worst. The claim that family law lawyers are liars who exploit conflict for profit is insulting, juvenile and, as the answers to our survey suggest, baseless.

(I reiterate that the above is not a complete statement of the responses received to this open-ended, qualitative question, and should not be relied upon for analytical purposes. Not all respondents provided comments, and not all of the comments received have been reproduced. However, for those interested in the results of our survey, 77.4% supported changing the language used by the Divorce Act to address post-separation parenting to something along the lines of "parenting time," "parenting arrangements" or "parental responsibilities," and 23.2% opposed amending the Divorce Act to impose a rebuttable presumption of shared custody. Respondents also said that about 40 to 45% of their cases are resolved with an agreement or order for shared custody, and that about 75 to 90% of their cases resolve with both parents being responsible for making parenting decisions. A more complete report on the results of the survey will be published by the Canadian Research Institute for Law and the Family by the end of October 2014.)

New Access to Justice Blog Launched

I have just published a new blog on access to justice issues and solutions. Access to Justice in Canada is directed to lawyers and discusses the things that lawyers can do, individually or in small groups, to make material improvements to the accessibility of justice for everyone.

The new blog results from three things that have begun to trouble me of late. First, as the final report (PDF) of the Family Justice Working Group of the Action Committee on Access to Civil and Family Justice points out, there are limited governmental resources available to put toward the reform of the justice system. Second, the law reform initiatives presently underway across Canada have all adopted processes that will take some time to bear fruit, and have time-lines that are looking at two, three and more years to completion. Third, I fear that we are approaching a point of access to justice saturation, fatigue and burn-out. 

Although I support the inclusive processes adopted in provinces such as British Columbia and Alberta that take a multidisciplinary and expansive approach to reform, I worry that without some concrete, tangible evidence of progress, the public enthusiasm for change we enjoy at present will begin to dissipate. However, I know from my own personal experience that there are lots of things that lawyers can do to improve access to justice that don't need to wait for new rules of court, overhauled legislation, new triage processes and new social programs, that don't need to wait for the approval of the law society, government or the bench, that can be implemented now, at little or no cost to the individual lawyer.

I have already posted a number of suggested access to justice activities on the new blog, and will post more in the months ahead. My hope is that the blog will become less of an exercise of me talking from a soapbox and more of a forum for discussion and debate and, most importantly, a conversation about the things that all of us, acting together or alone, can do improve access to justice, and I invite you all to participate. 

Please check out the Access to Justice in Canada blog, at accesstojusticeincanada.blogspot.ca, and join me on this journey.

The Middle Ages: Alive and Well in North Carolina

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

An unusual comment caught my eye today, posted by a bogus Google+ user on behalf of Diener Law of North Carolina:

In the event that you are considering a separation with your accomplice, your first step will be to contract a family law lawyer to help you through the procedure

Apart from the humour of separation with your accomplice, the link the spammer was trying to promote was to "stolenspouse.com" — and that's what got my attention.

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

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

A "matrimonial tort" is a tort that causes harm to someone by interfering with his or her marriage or right to be married. These torts are so delightfully old-fashioned, and misogynist, that most industrialized nations kicked them to the curb sometime in the 1960s and 1970s. Needless to say, I was tickled that a few of these yet survive in North America. Here are a few of my favourites from the good old days:

· A suit could be brought for jactitation of marriage, the false boasting of married status, which could result in a decree in the nature of an injunction restraining the respondent from making any further claim of marriage to the applicant.  

· An engaged person could sue for breach of promise to marry, which might lead to an award of damages in contract. 

· A husband could sue a third party for the ravishment of his wife, which could result in damages against a respondent who had taken her away thereafter. 

· A husband could sue a third party for enticing and harbouring his wife. 

· A suit could be brought for loss of consortium where the conduct of a third party, either by contract or by tort, caused the husband to lose the companionship and sexual services of his wife.

And this is one of the reasons why I love family law.

The tort of "alienation of affection," which Diener handles, is a species of loss of consortium. The case of Kungl v Schiefer from 1962 was one of the last such cases to be heard in Canada, and the husband's sued his wife's lover for alienating her affections from him, "thereby destroying the plaintiff’s home and marriage and causing the plaintiff to lose the enjoyment of the society, affection, comfort and services of his said wife." The claim resulted in an award of $10,000 at trial, on the basis that:

"The wife, while living under her husband’s roof, had entirely ceased to discharge any wifely function. She slept in her own room, locking the door. She refused to speak to her husband; and he was fully deprived of her consortium as if she lived in a separate building,"

however the case was ultimately thrown out by the Supreme Court of Canada. Here is Diener Law's charming, oddly pastoral description of the tort:

"North Carolina is one of a handful of states that recognize a 'heart balm' tort know as alienation of affection. It is called a 'heart balm' tort because its goal is to provide money damages for emotional harm. The North Carolina Supreme Court has gone so far as to recognize this cause of action for damages against one who wrongfully and maliciously alienates the affections of a spouse as a 'fundamental common law right'."

A suit could be brought against a third party who had intercourse with a spouse under the tort of "criminal conversation," Diener's other speciality, the tort of "debauching or seducing of a wife or husband," which was avaiable whether the spouse had consented to the debauchery or not. The Ontario Superior Court, in the 1921 decision of Maguire v Maguire, described this tort thusly:

"[T]he gist of the action of criminal conversation is not merely the loss of the society, comfort and assistance of the wife, but that it includes also the wrong done by the intolerable insult to which he has be subjected by the corruption of his wife."

Here's how Diener describes criminal conversation:

"Essentially, criminal conversation is adultery. Like alienation of affection, criminal conversation is referred to as a 'heart balm action' because it seeks to award money damages for emotion harm. This tort is based on the common law 'fundamental right to exclusive sexual intercourse between spouses'."

Imagine that. I suppose the real lesson here is that you'd better not have sex with someone else's spouse in North Carolina.

Sadly, suits for criminal conversation were forbidden by the British Columbia Family Relations Act of 1978 which, in its 1996 version, said at s. 123:

(1) An action must not be maintained for restitution of conjugal rights, loss of consortium, criminal conversation or jactitation of marriage. 

(2) An action must not be maintained for

(a) enticement of a spouse, 

(b) harbouring of a spouse, or 

(c) breach of promise of marriage.

I'd love to say that the loss of these quaintly sexist, and ever so conservative, torts is a bad thing, however the present no-fault system really works a lot better, costs people a lot less money and results in a lot less enmity and rancour. You've come a long way since the middle ages, baby.

Update: 28 May 2014

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

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

Family Law Disputes and the Deductibility of Legal Fees

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

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

Legal Costs in Family Law Disputes

Happily for people embroiled in family law disputes, the federal Income Tax Act lets you deduct some but not all of the money you're spending on your lawyer. The Canada Revenue Agency's Income Tax Interpretation Bulletin IT-99R5 sets out the basic rule, which I think comes from s. 8 of the act, that:

Except where there is a specific provision in the [Income Tax Act] dealing with legal or accounting fees ... legal and accounting fees are deductible only to the extent that they 

(a) are incurred for the purpose of gaining or producing income from a business or property, and 

(b) are not outlays of a capital nature.

Here are the rules applicable to family law matters:

¶ 4. "Legal costs to prosecute or to defend most tort, contract or other civil claims arising in the ordinary course of business will generally be deductible." (Torts include claims for damages for assault, battery, negligence, malicious prosecution and so on.) If you are successful, you can deduct your legal fees minus any legal costs you are awarded and actually receive. 

¶ 17. Legal costs of getting a divorce, establishing a right to spousal support under the Divorce Act or obtaining an increase in spousal support are not deductible.  

¶ 17. Legal costs of getting an order for child support are deductible. The costs of obtaining an increase in child support are not deductible. 

¶ 21. Payors' costs of addressing a claim for support are not deductible. 

¶ 18. Legal costs of defending against the reduction of support are deductible.  

¶ 21. Payors' costs of reducing support or terminating support are not deductible. 

¶ 18. Legal costs of enforcing an existing right to support are deductible. An existing right of child support or spousal support may come from a separation agreement, a court order or the legislation on family law matters. Child support is an existing right under the Divorce Act. 

¶ 20. However, legal expenses of getting a lump-sum payment other than for arrears are not deductible. 

¶ 21. Legal expenses relating to custody or access are not deductible.

Suggestions for Parties

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

Practice Suggestions for Lawyers

If you are a lawyer representing or about to represent someone in negotiating, applying for or enforcing child support or in enforcing an agreement or order for spousal support, you should consider:

1. Raising the issue of these tax deductions in your retainer letter so your client is aware of them from the start.
2. Maintaining a separate yearly tally of your hours and disbursements incurred in relation to these issues, as you bill for your time or incur those expenses, so that you have an accurate record for your letter to the CRA. 
3. Providing the client with an annual statement, in January or February, around the time T-slips are due, setting out the amount of your fees and disbursements related to these issues. 

You may wish to take these steps this regardless of whether the client mentions his or her wish to claim these deductions when you are retained; clients often ask for an accounting at tax time, and you do not want to put yourself to the trouble of a file review to calculate the client's deduction or to the risk of making a guesstimate to CRA.

Update: 7 July 2014

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

CBA Publishes Family Law Resources

The Canadian Bar Association, the national association of Canadian lawyers, has just published an excellent resource from its national family law section and number of materials directed at the public further to its Equal Justice Initiative. (The CBA's Access to Justice Committee was another product of this Initiative, you may recall, and published its final report, Reaching Equal Justice Report: An Invitation to Envision and Act (PDF), in November 2013.)

Legal Health Checks

In a new resources page on its website, beneath the compelling banner "Law. You. Check it out.", the CBA says:

"An important part of improving access to justice is to ensure people have the information and tools they need to avoid legal problems in the first place, or to prevent those problems from becoming bigger than they might have been. As part of the CBA’s Reaching Equal Justice initiative, CBA is offering 6 Legal Health Checks for the public. ... The goal of the Checks is to encourage people to recognize legal problems early, and to take action when they do identify them. For lawyers, these materials are a way to start conversations with people about the law, how to get legal help and how to work effectively with a lawyer."

The "checks" are smartly-designed, one- or two-page documents that provide cursory information about different legal issues and encourage people to get legal advice. Five Steps to Legal Wellness (PDF), for example, tells people to deal with legal problems when they come up, keep paperwork like contracts, get help right away, get advice from a lawyer and remain calm when discussing the problem. Heady stuff.

On family law subjects, On My Own: Youth (PDF) says that sex without consent is a crime, warns against sharing explicit photographs and warns that "having a baby means financial and other consequences for both parents until the baby grows up." How to Avoid Surprises (PDF) cautions that being in a romantic relationship can have consequences and encourages people to get legal advice "before you live together, before you have a child, before you get married, when your marriage or common-law partnership is ending." 

Breaking Up (PDF), a concise one-page document, talks about the financial consequences of separation and encourages people to "speak to a lawyer when you are calm" and to use the lawyer for "legal advice, not counselling." A companion sheet, Breaking Up: Parenting (PDF), another one-pager, tells people that "by getting legal help with parenting decisions" they can focus on children's needs, avoid conflict, protect themselves and find lasting solutions.

I'm a staunch supporter of public legal information and public legal education, but with the greatest of respect I'm not sure what what the six checks are going to accomplish, or whether they will "encourage people to recognize legal problems early, and to take action" as intended. The materials on family law matters are brief and insubstantial, and provide little by way of legal information except to recommend speaking to a lawyer. Of course everyone with a legal problem, real or potential, ought to speak to a lawyer, but here is what Canada's Chief Justice said when addressing an access to justice conference in Toronto in February 2011:

"Do we have adequate access to justice? It seems to me that the answer is no. We have wonderful justice for corporations and for the wealthy. But the middle class and the poor may not be able to access our justice system."

And there's the rub.

Tax Matters Toolkit

The new material from the CBA's national family law section, a group for members who practice family law, is a resource called Tax Matters Toolkit: Separation and Divorce (PDF) that is published in two versions, one aimed at family law lawyers and one aimed at their clients. The client resource is short but jam-packed with useful information about the tax issues that come up when a relationship breaks down. It talks about:

• how and when the Canada Revenue Agency must be told about changes in marital status
• knowing when potential tax issues are worth the cost of speaking to a tax specialist
• the CRA's definitions of important terms like "child," "common law partner," "principle residence," "separation" and "shared custody"
• sharing RRSPs and other kinds of pension plans and pension funds

The resource also provides a list — complete with links! — of important CRA forms and describes what the forms are meant to accomplish. 

The resource does not talk about common but very complicated tax problems like tax arrears and potential taxes owing for present and past years, planning spousal support for the maximum tax advantage or sharing the value of family companies, but that's entirely understandable. Those issues can be very, very complicated and generally do require expert advice.

Good job, family law section!