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

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

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

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

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

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

Settlement Discussions and Confidentiality Agreements

Negotiations toward settlement happen fairly frequently in family law matters, in informal circumstances such as:

• the parties or their lawyers talking on the phone or writing letters to each other and 
• in-person meetings between the parties and their lawyers, called "four-way meetings,"

and in more formal settings where the parties sign a participation agreement like:

• mediation and
• collaborative settlement processes.

Most of the time, it is understood — and often expressly stated — that the content of the discussions is "off the record" and can't be used if the parties return to court. The point of this is to allow people to propose compromises to their position without being stuck with those compromises at trial. Here's an example:

Sally hires a lawyer and sues Amar for $100,000 as her share of the family property. Amar hires a lawyer, whose opinion is that Sally is entitled to a share of the family property, but that a fair amount would be $50,000. 

Sally and Amar could go to trial over the $50,000 difference, or they could try to negotiate a settlement. Most rational people try to negotiate a settlement, which is what Sally and Amar do. However, if settlement discussions fail, $50,000 might just be enough to fight over in court. 

Sally is convinced that the court will make an award of at least $90,000, but if she spends $30,000 on lawyer's fees and expenses for the trial, she's only going to net $60,000...  a mere $10,000 improvement over what Amar has proposed. (Even if she gets the full $100,000, which is unlikely since people usually handle lawsuits strategically and ask for more than they think they're likely to get, she'll still only gain $20,000 over Amar's offer after she's paid the cost of the trial.) However, if she can settle and avoid trial, she'll get to keep all the money she was going to have to spend on her lawyer.  

Sally, Amar and their lawyers agree to use a mediator to discuss settlement. Their lawyers confirm that all of the settlement discussions will be confidential and they sign a mediation agreement which contains a term to the same effect. Confidentiality is important, because Sally needs to be able to say "I'll settle for $80,000" in the discussions, but still claim $100,000 if she and Amar have to go to a trial, and she certainly doesn't want Amar telling the court that she was prepared to settle for $80,000. Likewise, Amar needs to be able to say "I'll settle for $70,000" but still argue that $50,000 is fair at trial.

With an agreement or understanding of confidentiality in place, each party is able to bargain toward settlement without worrying that the other side will use their settlement proposals or the information disclosed during mediation against them. In the example of Sally and Amar, their starting positions are $100,000 and $50,000, but Sally knows that really her claim is probably worth $90,000. Considering that the cost of trial is going to be $30,000, this means that her real range of settlement options is between $60,000 (the likely award minus trial costs) to $90,000 (the likely award), and so she has a lot of room to move if trial can be avoided — in fact, if Amar offers her $70,000, that might be a bit of a win! Without that confidentiality agreement, Sally and Amar won't be able to budge from their starting positions. As a result, confidentiality agreements can be terribly important. 

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

Proving the Terms of Settlement

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

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

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

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

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

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

Union Carbide v Bombardier 

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

This is how the court described the case (important bits in bold, as usual):

"[27] ... there are two questions to answer in this appeal. The first is whether a confidentiality clause in a private mediation contract can override the exception to the common law settlement privilege that enables parties to produce evidence of confidential communications in order to prove the existence or the scope of a settlement. The second question, which arises only if the answer to the first is yes, is whether the confidentiality clause at issue in the case at bar displaces that exception. If it does, the information referred to in the impugned paragraphs cannot be disclosed. If it does not, that information may be disclosed if it meets the criteria of the exception."

The court first looked at the issue of settlement privilege, which it defined this way (case references omitted):

"[31] Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. Sometimes called the 'without prejudice' rule, it enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation. This promotes honest and frank discussions between the parties, which can make it easier to reach a settlement ...

"[32] Encouraging settlements has been recognized as a priority in our overcrowded justice system, and settlement privilege has been adopted for that purpose. ...

"[34] Settlement privilege applies even in the absence of statutory provisions or contract clauses with respect to confidentiality, and parties do not have to use the words 'without prejudice' to invoke the privilege: 'What matters instead is the intent of the parties to settle the action ... Any negotiations undertaken with this purpose are inadmissible'. Furthermore, the privilege applies even after a settlement is reached. The 'content of successful negotiations' is therefore protected ..."

Next, the court looked at the exception to the principle of settlement privilege. After quoting from Sopinka's The Law of Evidence in Canada,

"If the negotiations are successful and result in a consensual agreement, then the communications may be tendered in proof of the settlement where the existence or interpretation of the agreement is itself in issue. Such communications form the offer and acceptance of a binding contract, and thus may be given in evidence to establish the existence of a settlement agreement."

the court summarized the principle thusly:

"[35] ... A communication that has led to a settlement will cease to be privileged if disclosing it is necessary in order to prove the existence or the scope of the settlement. Once the parties have agreed on a settlement, the general interest of promoting settlements requires that they be able to prove the terms of their agreement. Far from outweighing the policy in favour of promoting settlements, the reason for the disclosure — to prove the terms of a settlement — tends to further it. The rule makes sense because it serves the same purpose as the privilege itself: to promote settlements."

Having established that the concept of settlement privilege, which also applies to discussions made in the course of mediation, and its exception are bookends framing the overarching policy goal of promoting the settlement of legal disputes, the court then addressed whether the mediation agreement in the case operated to abridge the exception.

Here, by the way, is what the mediation agreement said about confidentiality:

2. Anything which transpires in the Mediation will be confidential. In this regard, and without limitation:

(a) Nothing which transpires in the Mediation will be alleged, referred to or sought to be put into evidence in any proceeding; 

(b) No statement made or document produced in the Mediation will become subject to discovery, compellable as evidence or admissible into evidence in any proceeding, as a result of having been made or produced in the Mediation; however, nothing will prohibit a party from using, in judicial or other proceedings, a document which has been divulged in the course of the Mediation and which it would otherwise be entitled to produce; 

(c) The recollections, documents and work product of the Mediator will be confidential and not subject to disclosure or compellable as evidence in any proceeding.

The court noted that people who engage in mediation seek confidentiality for more reasons that just protecting their position at trial. People may wish to maintain the privacy of their personal lives and business arrangements; protect information, and even the terms of settlement, from use and misuse by third parties; or keep information from discovery by government. As a result, there are additional interests involved in mediation, and, I infer, in other formal means of private settlement negotiation, that are worthy of protection:

"[45] The common law settlement privilege and confidentiality in the mediation context are often conflated. ... But ... confidentiality clauses in mediation agreements can also have different purposes. In most cases involving such clauses, the status of the common law settlement privilege will not arise, because the two protections generally serve the same purpose, namely to foster negotiations by encouraging parties to be honest and forthright in reaching a settlement without fear that the information they disclose will be used against them at a later date. However, ... settlement privilege and a confidentiality clause are not the same, and they may in some circumstances conflict. One is a rule of evidence, while the other is a binding agreement; they do not afford the same protection, nor are the consequences for breaching them necessarily the same."

But can you contract out of the exception to the settlement privilege principle by including a confidentiality clause in a mediation agreement, "thereby preventing parties from producing evidence of communications made in the mediation process in order to prove the terms of a settlement," even though such a result might "frustrate the broader purpose of promoting settlements in that it might prevent parties from enforcing the terms of settlements they have negotiated?"

The answer, in a nutshell, is sometimes.

"[51] ... It is open to contracting parties to create their own rules with respect to confidentiality that entirely displace the common law settlement privilege. This furthers both freedom of contract and the likelihood of settlement, two important public purposes. However, the mere fact of signing a mediation agreement that contains a confidentiality clause does not automatically displace the privilege and the exceptions to it. As I mentioned above, these protections do not have the same scope. For instance, settlement privilege applies to all communications that lead up to a settlement, even after a mediation session has concluded. It cannot be argued that parties who agree to confidentiality in respect of a mediation session thereby deprive themselves of the application of settlement privilege after the conclusion of the mediation session. The protection afforded by the privilege does not evaporate the moment the parties contract for confidentiality with respect to the mediation process, unless that is the contract’s intended effect."

However, if you intend your mediation agreement to suspend the exception to the settlement privilege principle, you need to be pretty blunt about it:

"[54] Where an agreement could have the effect of preventing the application of a recognized exception to settlement privilege, its terms must be clear. It cannot be presumed that parties who have contracted for greater confidentiality in order to foster frank communications and thereby promote a settlement also intended to displace an exception to settlement privilege that serves the same purpose of promoting a settlement. Parties are free to do this, but they must do so clearly. To avoid a dispute over the terms of a settlement, they may also choose to stipulate that, to be valid, any settlement agreed to in the mediation must be immediately put into writing. ... Such a stipulation would underscore the binding nature of any agreement reached in the course of the mediation process. ... 

"[67] I find that it is open to parties, in agreeing to confidentiality for a mediation process, to go so far as to limit their ability to prove the terms of any settlement. When any such limit is placed on the usual rule in this regard, however, it must be clear, on applying the principles of contractual interpretation of the relevant jurisdiction, that that is what the parties intended. ..."

Summary

Here's what the decision in this case boils down to for those involved in family law disputes.

· Settlement privilege normally protects discussions aimed toward settlement from disclosure to the court. 

· You can, however, talk about those discussions in court if it becomes necessary to prove the existence of the settlement you reached or the exact terms of your settlement. 

· Although this exception to the principle of settlement privilege is a good idea, you can contract out of the exception though a mediation agreement, so that the settlement discussions can never be disclosed, even to prove that an agreement was reached. 

· To effectively contract out of the exception, you must intend to do so and the contact needs to say that this is your intention. 

· Without having this express intention and including a statement to that effect in your mediation agreement, a confidentiality clause will not prevent you from talking about settlement discussions if necessary to prove the existence of the settlement or its terms.

Two things come from this.

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

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

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

Let's Mediate!: A Primer on the Useful but Underused Notice to Mediate Regulation

In 2007, the provincial government introduced the Notice to Mediate (Family) Regulation, taking the nuts and bolts of the Notice to Mediate (General) Regulation, which didn't apply to family law matters, and applying them to family law matters. This was a fantastic development as the new regulation allowed people involved in family law actions in the Supreme Court to compel all other parties to attempt mediation.

Sadly, the Notice to Mediate Regulation has languished underused in all parts of the province except Victoria, as I found out when I conducted an informal survey of my former colleagues earlier today. This is really unfortunate as the regulation could be a very useful tool in family law matters, especially those in which a trial is looming. Why? Trials are extraordinarily expensive; mediation much less so.

The regulation is straightforward and easy to follow. Here's how it works.

Serve Notice

Any party can begin the process by serving a Notice to Mediate (Family) in Form 1 on every other party to the action. The Notice cannot be served any sooner than 90 days after the Response to Family Claim is filed, and no later than 90 days before the trial is set to start.

Pick a Mediator

The parties then have 14 days to pick a mediator they all like.

If they can't agree on someone within that period, any party can apply to a roster organization for the appointment of a mediator. (A roster organization would be a group like Mediate BC.) The roster organization then has 7 days to provide all parties with a list of six potential mediators.

Each party then has 7 days to strike the two mediators they like least off the list, number the remaining four mediators in order of preference, and send the list back to the roster organization. A party who fails to get this done within the 7 day period is deemed to accept all of the mediators.

The roster organization then has 7 days to appoint a mediator from the remaining names on the original list, taking into account the parties' preferences as well as important things such as the mediator's experience and availability. If there are no names left from the original list, the roster organization can appoint another person as mediator.

The roster organization must then notify all parties of the appointed mediator.

Pre-Mediation Meeting

The mediator must have a pre-mediation meeting with each party. At this meeting, the mediator is required to screen for family violence and imbalances of power, and determine whether the case is suitable for mediation. The mediator must then discuss a number of practical matters including:

1. the importance of obtaining legal advice;
2. the issues that will be covered;
3. the documents that need to be exchanged between the parties;
4. whether any expert reports need to be prepared; and,
5. scheduling.

The party will then sign the mediator's mediation agreement.

Although there are a few exceptions, the regulation requires each party to attend the pre-mediation meeting, with or without a lawyer, and to sign the mediation agreement.

The Mediation Session

A mediation session must be held within 60 days of the appointment of the mediator, unless everyone agrees to a later date or the court makes an order to that effect.

Each party must send a Statement of Facts and Issues in Form 2 to the mediator at least 14 days before the mediation session is to begin; this form is used to describe the facts and legal basis for the position each party is taking. The mediator will distribute copies of each party's Statement.

On or before the start of the mediation session, the parties must sign a Fee Declaration in Form 3. The Declaration sets out the cost of the mediation and says how the mediator will be paid, either equally by both parties or on some other basis. Although the Declaration is binding on the parties, they can also agree during the mediation that a party will be paid back for his or her share of the mediator's fees.

The mediation session will then begin, with or without lawyers, and, hopefully, wrap up with a settlement.

Conclusion of Mediation

A course of mediation is considered to be concluded when:

1. the parties reach an agreement on all issues; or,
2. the mediation sessions ends without an agreement and without an agreement to continue in mediation.

The mediator must then deliver a Certificate of Conclusion of Mediation in Form 5 to any party who wishes one.

Confidentiality

The regulation provides that no one can disclose, or be made to disclose, any information, documents or opinions obtained in the course of mediation. This applies to the parties, their lawyers and the mediator.

This prohibition applies to the family law action itself, to any other civil action and to any criminal proceeding. The prohibition does not cover the Fee Declaration or anything the parties agree can be disclosed.

Noncompliance

If a party doesn't comply with any of the requirements of the regulation, another party can take the problem to court by serving all other parties with an Allegation of Default in Form 4 along with an affidavit explaining the noncompliance.

If the court concludes that the party failed to comply as claimed, the court may:

1. adjourn the mediation or make an order that the mediation session occur;
2. adjourn the hearing on the Allegation of Default, and order that a party attend the mediation session;
3. adjourn the hearing on the Allegation, and order that a party deliver a Statement of Facts and Issues;
4. adjourn the family law action until the parties attend the mediation session; and
5. make an order for costs.

Forms

The court forms are found at the end of the regulation, here.

I understand from my colleagues in Victoria, and the few in Vancouver who use the regulation, that it can be very effective and that they have each had a number of cases that have settled as a result of course of mediation commenced under the regulation. I can see the regulation being particularly useful where a lawyer or a party is being uncooperative and refusing to engage in settlement discussions.

This regulation is a simple, excellent and affordable, but rarely used, tool. Use it. Please.

CLE Unleashes Family Law Act Training

The training opportunities for the coming into force of the new Family Law Act are about to get rolling. The Continuing Legal Education Society of British Columbia has taken an outstanding leadership role in packaging courses on the new legislation for lawyers, mediators, arbitrators and support staff. Here's some of what's going on over the next few months...

The Family Law Act: Everything You Always Wanted to Know But Were Afraid to Ask

This is a two-day practice-oriented course that will sink its teeth into the major areas of change under the new legislation — the division of property and debt, the care and control of children, and family violence and protection orders — each in a half-day slot, and address the changes to child support, spousal support and other issues in shorter segments in the last half-day.

Vancouver: January 31st, February 1st

Victoria: February 7th, 8th 

Kelowna: February 21st, 22nd

Early bird cost: $960 (students $485)

The New Family Law Act for Legal Support Staff

This is a one-day, comprehensive course designed for legal assistants and paralegals aimed at developing strategies to transition to the new legislation, including the revisions to the rules of court and court forms.

Victoria: February 14th

Vancouver: February 18th

Kelowna: February 19th

Early bird cost: $475 (students $225)

Family Violence Screening Training

This two-day course is designed to meet the practice requirements require by the Law Society and the Family Law Act Regulation for lawyers wishing to practice as parenting coordinators, family law mediators and family law arbitrators under the new act. The course will teach how to screen for family violence and how family violence can impact on different dispute resolution processes.

Vancouver: January 21st, 22nd or January 24th, 25th

Cost: $1,100

Family Law Act Transition Guide

This book contains the Family Law Act annotated with commentary prepared by leading family law counsel and explanatory materials released by the Ministry of Justice, and includes a table of concordance between the old and new legislation. The first chapter provides an overview of the new act and is particularly well-written.

Cost: $195

Out With the Old, In With the New: Changes to plan for in 2013

The last few years have welcomed a range of important reforms affecting the practice of family law in British Columbia, including the new Supreme Court Family Rules, recalculated child support tables, the extension of the Notice to Mediate Regulation to family law matters and the expansion of the family law justice centre court model beyond Nanaimo. 2013 is going to be no different. In fact, in 2013 we are going to undergo reforms of a scope and magnitude not seen in the last thirty years. If the changes implemented in 2010, 2011 and 2012 were not your cup of tea, you are going to hate 2013. Read on.

The Family Law Act

The coming-into-force of the new Family Law Act will be the major event of 2013, no doubt about it. The new act will replace the Family Relations Act, which has been at the core of the law on domestic relations in British Columbia since 1972. 

Here are the highlights of the changes to expect on 18 March 2013:

• Family violence: Under the new act, family violence will be a factor which must be considered when the court is making decisions about children. The court will also be able to make protection orders to protect children and adults who are at risk of family violence.
• Parentage: We will have a complete code for determining a child's parentage, including when a child is conceived as a result of assisted reproduction. When assisted reproduction is used, a child may have more than two legal parents.
• Children's best interests: The list of factors that parents and the court must consider when making decisions about children will grow significantly, and will include family violence and a presumption that children's views should heard.
• Guardianship: The new act will give us a new definition of guardianship which takes us back in time to the old common law meaning of the term. Under the new act, subject to some exceptions, parents will usually be a child's guardians during their relationship and after separation. A guardian will be able to appoint a person to act as guardian in the event of his or her illness or death.
• Parental responsibilities: The decisions a child's guardians must make about raising the child will be called parental responsibilities, and will cover everything from where the child goes to school and how the child's health care is managed to signing permission slips for field trips. Only guardians will have parental responsibilities.
• Parenting time and contact: The time a guardian has with a child will be called parenting time. The time that someone who isn't a guardian has with a child will be called contact.
• Child support: Under the new act, the child support duties of a stepparent will be secondary to those of a parent, and the amount that the stepparent must pay will be determined considering the length of time the child and stepparent lived together and the child's standard of living during that time. A person paying support may also be required to carry life insurance to secure his or her obligation.
• Spousal support: People who have lived together for less than two years and have had a child together will be eligible for spousal support. Orders and agreements for spousal support may be reviewable. A person paying support may also be required to carry life insurance to secure his or her obligation.
• Property and debt: The new act will let people keep the property they owned going into to the relationship but require them to share any property or debt acquired after the date of marriage or the date they began to live together, whichever was first, plus the increase in value of any property brought into the relationship. People will also be able to keep other kinds of property they acquire during the relationship, such as inheritances, court awards and insurance payments. The property and debt provisions of the new act will apply to married and unmarried spouses.

Some amendments are likely planned to fix the very small number of problems in the new legislation that were overlooked in the drafting process. However, the next session of the Legislative Assembly, which will probably not begin until February or so, is going to be somewhat preoccupied with matters leading to the mandatory provincial election in May. As a result, it is very unlikely that the Family Law Act will be amended until the fall sitting.

You can read more about the Family Law Act in my Family Law Act Information & Resources page or in the helpful website on the new act put together by the Ministry of Justice.

The Regulations to the Family Law Act

Two main regulations will come into effect with the Family Law Act, the Family Law Act Regulation and the Family Law Act Pension Regulation. There are a few dozen other regulations that will come into effect at the same time, but these are largely housekeeping regulations that change other regulations to refer to the Family Law Act rather than the Family Relations Act.

The Family Law Act Pension Regulation deals with, well, pensions. No surprises there.

The Family Law Act Regulation covers a number of important subjects including:

• the roles and responsibilities of Family Justice Counsellors
• the training and experience people will have to have to work as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators under the new act
• adopting the federal Child Support Guidelines as the Guidelines for the Family Law Act and translating the new act for the purposes of those Guidelines

The Ministry of Justice has written a helpful guide to the Family Law Act Regulation (PDF). You can find links to the new regulations in PDF format in my post "Regulations to Family Law Act Published."

The Family Relations Act

The Family Relations Act, and the regulations made under the Family Relations Act, will all be repealed when the Family Law Act comes into force on 18 March 2013. The repealed regulations include the Child Support Guidelines Regulation, the Division of Pensions Regulation and the Family Relations Act Rules and Regulations Regulation.

The Divorce Act

I am not aware of any changes planned for the Divorce Act. However, it's worth saying that among the things that will be staying the same under the Divorce Act are:

• Custody: The right to physical possession of a child and certain rights, almost like those of a guardian, to make decisions regarding the care and upbringing of the child.
• Access: The time a person has with a child under an order or agreement.
• Child support: The obligation of a spouse or stepparent to contribute to the costs of raising a child, as determined under the Child Support Guidelines.
• Spousal support: The obligation of a spouse to contribute to the living expenses of the other spouse, where that spouse has demonstrated an entitlement to receive it.

As a result, when the Family Law Act comes into force, married spouses will be subject to two slightly different rules for determining child support and spousal support, and to two very different schemes for the care and control of children.

The Child Support Guidelines

I am not aware of any changes planned for the Child Support Guidelines. The Guidelines tables were last amended on 31 December 2011, which means that the next amendment is unlikely to occur prior to 2016.

The Rules of Court

Both the Supreme Court Family Rules and the Provincial Court (Family) Rules will be amended on 18 March 2013 to accommodate the Family Law Act. Both sets of rules will be updated to:

• implement the new terminology used by the Family Law Act (for example, parental responsibilities, parenting time and parentage tests)
• address the new concepts introduced in the act (for example, parenting coordination, conduct orders and protection orders)
• address new processes established by the act (for example, the enforcement of orders and applications to enforce or set aside the determinations of parenting coordinators)
• delete reference to concepts not carried forward by the act (for example, restraining orders, parental support and declarations of irreconcilability)

The changes to the Provincial Court rules were somewhat more extensive given their antiquity, however the Minister of Justice has promised a complete overhaul of the rules for sometime in 2013 or 2014.

I expect that further updates to both sets of rules will be announced in the next few months to address the requirements of s. 51(2) of the new act concerning applications to be appointed as a child's guardian:

"An applicant under subsection (1) (a) of this section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in section 37 [best interests of child] of this Act."

An overview of the changes can be found at the Ministry's website on the new legislation. I have also discussed the updates to the rules in my post "Family Law Act: Changes to Rules of Court."

The Limitation Act

A brand new Limitation Act will come into force on 1 June 2013. Among other things, the new act exempts arrears of child support and spousal support from any limitation period, which means that once arrears have accumulated under ss. 148 or 163 of the Family Law Act, or the equivalent sections of the Family Relations Act, they can always be enforced.

I have briefly discussed the new new act in my post "New Legislation Will End Limitation Period for Claims on Arrears of Support." The old Limitation Act can be found on the excellent website of the Queen's Printer.

Family Day

Thanks to Premier Clark's ambitious families first agenda, our province's first Family Day will be celebrated with a day off on the second Monday of February; this year, on 11 February 2013. Huzzah!

New Practice Standards for Lawyers

On 7 September 2012, the Law Society adopted new practice standards (PDF) for lawyers wishing to practice as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators when the new Family Law Act comes into force. The new standards are onerous but are, in my view, appropriately high.

I have discussed the new practice standards in my post "Family Law Act: Law Society Task Force Releases Practice Requirements, Government Announces No Fall Sitting."

People who are not lawyers and wish to practice as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators must meet the training requirements set out in the Family Law Act Regulation; lawyers who wish to practice in these areas must meet both the requirements of the regulation and the standards set by the Law Society.

New Code of Professional Conduct for Lawyers

The Law Society has implemented a new Code of Professional Conduct (PDF) to replace the old Professional Conduct Handbook, effective today. The code covers most aspects of lawyers' ethical obligations, including confidentiality, conflicts of interest and advertising, and is part of an effort to promote greater uniformity among the practice codes of the various provinces and territories.

I have discussed the new code in my post "New Code of Professional Conduct in Force in January." You can read more about the new code in the Law Society's Bencher's Bulletin newsletter.

Designated Paralegal Pilot Project

Beginning on 1 January 2013, the scope of practice allowed to paralegals under the Law Society's pilot project will expand to allow designated paralegals to appear in court.

In the Vancouver, New Westminster and Kamloops Supreme Court registries only, designated paralegals may apply for a wide variety of uncontested orders, largely concerning procedure and file management, and may make contested applications for the following orders:

• compelling the production of documents
• changing the place of an examination for discovery
• the payment of child support where the children are below the age of majority and the payor's annual income is less than $150,000

In the Caribou/Northeast District and Surrey Provincial Court registries only, designated paralegals may apply for the same sort of uncontested orders and may make contested applications for the following orders:

• compelling the production of documents
• compelling the production of financial statements and financial documents
• the payment of child support where the children are below the age of majority, the payor's annual income is less than $150,000 and the application does not involve situations of shared or split custody or a claim of undue hardship

For more information, see the paralegals page on the Law Society's website.

Provincial Sales Tax

Remember the PST? It's back on 1 April 2013. Lawyer's fees are subject to PST and GST; fees charged by lawyers acting as mediators are subject only to GST.

Happy new year.

Mediate BC Launches Program Addressing Support for Adult Children

Mediate BC has announced the launch of a new pilot project — the Child Support Eligibility Mediation Project — intended to address the often contentious issue of child support in respect of children who have reached or are approaching the age of majority. According to the society's statement, the aim of the program is to "help separated families resolve disputes concerning the eligibility of adult children for child support and special expenses" by creating an educational plan with the assistance of a mediator.

The service free and is available to separated parents whose children are either in Grade Twelve or are nineteen and older and enrolled in a post-secondary program.

The Child Support Eligibility Mediation Project is being carried out in collaboration with the Family Maintenance Enforcement Program and is funded by the Law Foundation of British Columbia and the Director of Maintenance Enforcement.

Regulations to Family Law Act Published

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

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

The Family Law Act Regulation deals with:

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

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

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

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

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

"Extensive training on the new Family Law Act."

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

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

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

MediateBC Releases Updated Guidelines for Distance Mediation

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

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

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

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

Family Law Act: Law Society Task Force Releases Practice Requirements, Government Announces No Fall Sitting

Proposed Practice Requirements 

On Friday 7 September 2012, the Law Society's Family Law Task Force released its recommendations (PDF) on the qualifications lawyers should be required to have before being able to practice as family law arbitrators, family law mediators and parenting coordinators as provided under the new Family Law Act. The proposed qualifications are rigourous, and, I suspect, appropriately so.

Family Law Arbitrators

The Task Force recommends that lawyers practicing as family law arbitrators have 10 years of practice or experience as a judge or master, sufficient knowledge and skills to arbitrate family law matters in a competent manner, 40 hours of training in arbitration, 40 hours of training in mediation and 14 hours of training in family violence. Arbitrators should also be required to take at least six hours of continuing professional development per year in dispute resolution skills training and/or theory.

Family Law Mediators

Lawyers practicing as family law arbitrators should have sufficient knowledge and skills to mediate family law matters in a competent manner, 80 hours of training in mediation and 14 hours of training in family violence. Mediators should also be required to take at least six hours of continuing professional development per year in dispute resolution skills training and/or theory.

Parenting Coordinators

Lawyers practicing as family law arbitrators should have 10 years of practice or experience as a judge or master, sufficient knowledge and skills to act as a parenting coordinator in a competent manner, 40 hours of training in parenting coordination, 40 hours of training in arbitration, 80 hours of training in mediation and 14 hours of training in family violence. Parenting coordinators should also be required to take at least six hours of continuing professional development per year in dispute resolution skills training and/or theory.

The recommendations of the Task Force must be approved by the Benchers of the Law Society.

Fall Sitting

The CBC reports House Leader and former Attorney General Mike de Jong as saying that the provincial legislature will not sit this fall. As a result, no amendments to the Family Law Act can be tabled until the spring sitting in 2013; the act is scheduled to come into force on 18 March 2013.

Update: 17 September 2012

According to a newsletter distributed by the Law Society today, the recommendations of the Family Law Task Force were approved by the benchers at their meeting on 7 September 2012. Lawyers currently practicing as mediators, arbitrators and parenting coordinators are advised to look at the grandfathering provisions of the recommendations.

Notice to Mediate Regulation in Effect Throughout BC

The Attorney General has announced that the Notice to Mediate (Family) Regulation will now be in effect throughout British Columbia.

The Notice to Mediate (Family) Regulation, a regulation under the Law and Equity Act and the younger sibling of the Notice to Mediate (General) Regulation, was introduced in 2007 and allows a party to a family law case in the Supreme Court to compel a course of mediation by filing a Notice to Mediate no earlier than 90 days after filing of the Response to Family Claim and no later than 90 days before the trial date.  The Notice to Mediate (Family) Regulation was originally limited in effect to the Nanaimo registry of the Supreme Court, but was expanded to the Victoria registry the very next year, and then to the New Westminster and Vancouver registries in 2009.

The political folderol from the Attorney General's press release says this:

"The provincewide expansion of the regulation is one of a series of steps government is taking to give families involved in legal disputes alternatives to court. Most significantly, the Province passed a new Family Law Act last November that places the best interests of children first when making any decisions involving the child and modernizes the justice system by addressing issues B.C. families are facing today. The Family Law Act is expected to come into force in 2013. These changes are among initiatives government is taking to achieve efficiencies and deal with growing resource pressures on the justice system."

For more information on the new Family Law Act, click the "Family Law Act" label below or visit the Family Law Act Information & Resources page.

Distance Mediation Project Winding Down: Last Chance to Enrol

Phase three of the Distance Mediation Project, a project of Mediate BC with funding from the Law Foundation will be wrapping up in five or six months. The project connects trained mediators with separated families who live in communities with little or no access to legal services, with rates set on a sliding scale indexed to family income. Says Mediate BC:

"To use our service all you need is one of today’s common communication tools, such as a computer with Internet access or a phone.  The mediator will meet with the two of you 'from a distance' using the communication tool that suits you the best.  If you have a computer with a webcam, the mediator can use one of the exciting new videoconferencing technologies.  Or, if you prefer, the mediator can meet with you using the phone or other tool, such as e-mail."

Now that's an accessible service.

Mediate BC is still looking for more families to participate in the project, and the deadline for new enrollments is 15 May 2012. Sign up now! Here's their contact information:

1-855-660-8406, toll free in Canada and the US
604-660-8406, local callers in Vancouver
mediation.advisor@mediatebc.com

Notice to Mediate expands to Vancouver and New Westminster Supreme Court Registries

The Notice to Mediate (Family) Regulation, BC Reg 296/2007, a regulation made under the Law and Equity Act, was expanded on 1 January 2009 to include the Vancouver and New Westminster registries of the Supreme Court.

The full text of the regulation can be found at the website of the Attorney General, along with the AG's fact sheet for lawyers and mediators.

In essence, the regulation says this:

• a party may trigger a mediation by delivering a Notice to Mediate (s. 3)
• the Notice to Mediate can be delivered between 90 days after the filed of a statement of defence and 90 days before the date of trial (s. 5)
• within 14 days of delivery, the parties must agree to a mediator (s. 6)
• failing agreement, a mediator will be appointed by a “roster organization” (ss. 7, 8, 9, 10 and 11)
• the mediator will have a screening session before the first meeting (ss. 12 and 13)
• the mediation session must occur within 60 days of the appointment of the mediator but not less than 14 days before trial (s. 24)
• the parties must deliver Statements of Facts and Issues to the mediator at least 14 days before the mediation session (s. 27)
• the parties must attend the screening session and the mediation session, with or without counsel, and may send a representative to attend in their place (ss. 16, 17, 18 and 19)
• a limited form of confidentiality applies at the mediation session, read this carefully (ss. 37 and 38)
• the mediator may conduct the screening session and the mediation session as he or she thinks fit, and may terminate the mediation if he or she thinks it appropriate to do so (ss. 15 and 33)
• at the conclusion of mediation, the mediator must deliver a Certificate of Conclusion of Mediation to the parties and to the AG’s DRO office (ss. 39 and 40)
  

It is unclear how forcing someone to mediate will be effective if they won't agree to it voluntarily. Nevertheless, I do hope there is some salutary value in the regulation. Time will tell.