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

Great New Parenting Plan Resource from the American Academy of Matrimonial Lawyers

The American Academy of Matrimonial Lawyers, a group that promotes excellence in the practice of family law, has just published a wonderful new resource on drafting parenting plans.

Child Centered Residential Guidelines is a booklet written by noted psychologist Robin Deutsch, past president of the Association of Family and Conciliation Courts and Director of the Center of Excellence for Children, Families and the Law at William James College, formerly the Massachusetts School of Professional Psychology. Child Centred Residential Guidelines is written in accessible language, offers useful tips and considerations for parenting after separation, and provides:

• model parenting plans for children of different ages;
• tips for planning for holidays and vacations; and,
• guidance on developing parenting plans when a child is being breastfed, a child has special needs, domestic violence or substance abuse is an issue, or a parent is in jail.

The free resource includes sample calendars mapping out the parenting plans it covers.

In its press release, the AAML says that the booklet encourages parents to place the interests of children first and intends to "make the divorce process as focused on the needs of the children as possible," featuring "crucial advice from experts, recommended time schedules that spouses can adapt, and practical suggestions for arriving at a cooperative plan for the entire family." The AAML is to be thanked for developing such a useful resource.

"Young Children Can't Be Home Alone, BC Judge Rules" ...No, Actually, He Doesn't

The Vancouver Sun published an article yesterday under the headline above. The headline was inaccurate and misleading, and so was the article, which began saying "a BC Supreme Court judge has ruled that it is not OK to leave an eight-year-old child alone at home, even for two hours."

Today the headline in the electronic version of the story reads "Judge upholds interim order that children can't be left home alone," and that first sentence has been changed. This is a little better, as the judge most certainly was not issuing a general pronouncement about eight-year-olds. However, the case the Sun was talking about, B.R. v K.K., reveals some interesting nuances of the child protection legislation in British Columbia ...and the importance of taking news stories about legal issues with a grain of salt.

Bad Headline

Better Headline

Let me explain about what happened in B.R., what the Supreme Court judge actually decided and what the decision actually means for British Columbians.

Mum and dad have two children and, at some point, separate. Sometime later, the Ministry for Children and Family Development, the folks that manage child protection in the province, comes to learn that mum leaves her eight-year-old son alone from after school until she gets home from work at 5:00pm. A social worker in the employ of the Ministry is dispatched to investigate.

The social worker asks mum to agree to a "safety plan." Mum refuses, as she is entitled to do, but is nonetheless a huge red flag to Ministry workers. Mum then refuses to allow the social worker to speak to her son, as she is entitled to do, but is also a red flag to Ministry workers. The social worker files a Form F Report with the Provincial Court, which you can find in the schedules to the Child, Family and Community Service Regulation, containing the social worker's statement that the child is, or is likely to be, at risk of harm.

The filing of a Form F triggers something called a "presentation hearing" under the Child, Family and Community Service Act, the legislation that gives the Ministry its child protection authority. Court proceedings on child protection matters are a two-stage affair. The presentation hearing is the first stage. The purpose of the hearing is to have the court look at what the Ministry is doing or proposes to do right away, and give it the thumb's up. The second stage, the protection hearing, is where the court actually hears evidence and decides whether the child is actually at risk.

To be clear, presentation hearings are not full trials and don't critically enquire into the facts of a case. They merely confirm that the Ministry has some evidence which, if true, could support the conclusion that the child in question is in need of protection, and thus that the Ministry is acting reasonably in taking the actions it has taken or proposes to take. Think of it like this. In criminal matters, the burden of proof on the government is to prove, beyond a reasonable doubt, that the accused person committed the crime. That's like proving 98% of a case. The burden of proof on the government at presentation hearings is only to show that it has a reasonable suspicion, and that's like having to prove 2% of a case. 

In any event, at the presentation hearing, with its very low burden of proof, the social work testified that, in her view, children who are eight years old don't have the mental capacity to be left alone and that in fact children who are under the age of ten cannot be safely left unsupervised. The judge also received unsworn evidence supporting this view in the form of "articles and documents" supplied by the lawyer for the government.

The Provincial Court judge hearing the case took the social worker's evidence very seriously, partly because of another decision, Re N.K., in which the court said that, at presentation hearings,

"[16] ... I am not required, nor is it appropriate, that I go behind the statements of fact contained in the Report to Court of the social worker. The court must, and the legislation requires, that great deference be given to the social workers who complete these reports. ..."

This decision kind of tied the judge's hands in the matter, and the judge made an order that the mum must ensure that the two children "will be under the care and supervision of a responsible adult at all times and not be left alone to care for themselves."

Mum appealed the Provincial Court decision, saying that the Provincial Court judge shouldn't have paid attention to the social worker's broad statement that no child under the age of ten should be left unsupervised. That's a pretty reasonable position to take, in my view. First, there is no law, in either the Criminal Code or the Child, Family and Community Service Act, that says "children under the age of ten can't be left alone." Second, it seems to me that the reasonableness of a parent's decision, because it is a parent's decision, to leave a child alone probably depends on

1. the child's age,
2. the child's maturity and stage of development, and
3. the place where the child is being left alone,

rather than on a universal rule that all children under the age of ten mustn't be left alone. After all, there are some eight-year-olds I would trust with the keys to my house and my car, and some eighteen-year-olds I wouldn't allow anywhere near either.

The mum's appeal was heard by the Supreme Court, and it is the decision of the Supreme Court judge rejecting her appeal which was the basis of the Sun's story. Unfortunately, as much as I sympathize with the reasons for the appeal, the Supreme Court was right to dismiss it. 

First, appeals aren't opportunities to have a case heard all over again, particularly in cases like this, where the decision appealed from is discretionary. As the court said,

"[12] ... The decision of the Provincial Court judge should not be interfered with in the absence of some material error. The function of this court on appeal is ... to determine if [the judge] erred in law or disregarded or overlooked some relevant matter ..."

In other words, the appeal court must respect the original judge's decision unless he or she made a significant mistake about the law or didn't take into account some important fact that might have influenced the outcome.

Second, the court hearing an appeal generally isn't allowed to interfere with original judge's decisions about the facts of a case. After all, the judge hearing the appeal wasn't there to observe the witnesses and make decisions about their credibility.

"[27] I am obliged to defer to the findings of fact made by the trial judge absent a palpable and overriding error. ..."

Third, the original judge was stuck having to give a lot of weight to the social worker's opinion because of the Re N.K. case, whether you agree with that opinion or not.

"[22] ... great deference is owed to the evidence of social workers in the presentation hearing content. ..."

Fourth, the burden on the original judge at the presentation was extremely low, and did not involve making decisions about whether the child was actually at risk of harm:

"[16] ... at the presentation hearing, the [government] need not show, and the Court need not conclude, that the child is actually in need of protection in order for a supervision order to issue ..."

In these circumstances, the fate of the mum's appeal was almost foregone. 

So, what should parents take away from this decision? I'm afraid not much.

You certainly can't conclude, despite the Sun article, that all children under age ten can no longer be left alone in British Columbia, because neither the Provincial Court judge nor the Supreme Court judge made that conclusion, and because there is no law in British Columbia which says so. The Provincial Court judge was obliged to accept the social worker's evidence, and the Supreme Court judge was in turn obliged to accept the facts as found by the Provincial Court judge. At the end of the day, the social worker's opinion, although informed by her years of service and doubtless well-intentioned, is just her opinion.

What you can take away from this case, however, is the danger of rebuffing the interventions of Ministry workers. In the child protection cases I've handled in the past, the sheet the worker fills out when speaking to a parent includes a checkbox labelled "refuses to accept services." When this box is checked, the Ministry's antennae go up and it becomes even more concerned that a child is at risk. As the Supreme Court judge said,

"[41] I also note that ... [the mother] refused to permit the social worker to speak with [the eight-year-old], and in doing so kept her from undertaking the individual inquiry that [the mother] now says should have been done. ..."

Refusing to cooperate with the Ministry in a child protection case can have serious consequences, such as further investigation or, as happened in this case, the filing of a Form F Report, even though the mum was well within her rights to do so. Compliance with the suggestions of the Ministry, even if they strike you as intrusive or unnecessary, is an awfully good idea.

How to Tell the Kids You're Separating

Alyson Jones, a well-respected West Vancouver family and child counsellor, collaborative coach, parenting coordinator, parent educator and author, has published an article in the Huffington Post about how parents can tell their children that they're separating. Most parents find telling their kids about their separation to be extraordinarily challenging. In fact, noted clinical psychologist Joan Kelly has found that a ridiculously small number of children, less than 20% if I recall, are told anything about what's going on between their parents and that this can have negative short- and long-term consequences for children's wellbeing.

I won't spoil Alyson's helpful article — you really should read it — but here's a short digest of her main points:

1. Prepare for the talk by meeting with a mental health coach expert in parenting issues.

2. Tell the children together. Take the talk seriously; don't be too casual in your approach.

3. Although you shouldn't be afraid of your children's emotional reaction, you can't get carried away by your own; be strong.

4. Tell the children that you both love them and that this will never change.

5. Tell the children what will be different in their lives and what won't.

Gary Neuman's book, Helping Your Kids Cope with Divorce the Sandcastles Way, is another helpful resource on this subject.

Communication Resources for Separated Parents

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Number of Stay-at-Fathers on the Rise: US Study

The Pew Research Center, an American think tank based in Washington DC, has just published an important new study, "Growing Number of Dads Home with the Kids: Biggest Increase Among those Caring for Family" (PDF) comparing demographic data obtained in 1989 and 2012.

Although the study is an easy read and clocks in at a modest 15 pages, here are the highlights of their findings:

· Fathers made up 16% of all stay-at-home parents in 2012, up from 10% in 1989. These fathers said that they are mainly at home because:

· they are ill or disabled (35%, down from 56% in 1989), 

· they cannot find a job (23%, up from 15% in 1989), and 

· they are caring for their home or family (21%, up from 5% in 1989).

· At-home fathers are twice as likely to lack a high school diploma than fathers working outside the home. 

· 47% of at-home fathers are living in poverty, compared to 34% of at-home mothers. 

· 50% of at-home fathers have a working spouse, compared to 68% of at-home mothers.

The Center also polled the views of the public on stay-at-home parents:

· 51% said that children are better off if their mother is home and doesn't have a job, compared to 8% who said that children are better off if their father is at home and doesn't have a job. 

· 34% said that children are just as well off if their mothers work, compared to 76% who said that children are just as well off if their fathers work.

On the whole these results aren't too terribly surprising. They reflect traditional social expectations of the different household roles played by men and women, but also that these values are beginning to soften, with more fathers being stay-at-home parents and more of those fathers choosing the role in order to care for family. It would be interesting to look at the extent to which this trend correlates with women's economic opportunities and employment incomes.