Excellent Child Mental Health Video Series for Family Law Lawyers and Parenting Coordinators

I've just discovered an amazingly useful cache of videos from Alberta Human Services on children's mental health issues. The nine videos are recordings of the lectures presented in part one of their Children's Mental Health Series and are presented by a variety of psychologists, social workers and other professionals, and cover topics including:

• "The Core Story of Child Development" (video);
• "Healing the Traumatized Parent and Child" (video);
• "Ameliorating Psycho-social Risk among Mothers with Intellectual Disabilities and their Children" (video); and,
• "Promoting Social and Emotional Well-Being in Children" (video).

The lecture series is aimed at professionals as well as caregivers and families, and is presented in generally accessible language as a result. After the usual housekeeping and introductory presentations, which frankly could have been edited out with no loss of content or quality, the lectures run for about an hour to an hour and a quarter. Each video includes a powerpoint presentation which can be downloaded separately, and a list of links to related online resources.

These videos will provide a helpful supplement to the knowledge base of anyone working as a parenting coordinator or providing non-evaluative views of the child reports, as well as family law lawyers whose practice includes an emphasis on children, mediation or collaborative settlement processes. They make an excellent companion to the animated video on children's brain development and reactions to stress provided by the Alberta Family Wellness Initiative that I have written about previously.

Part two of the Children's Mental Health Series will emphasize the adolescent brain and mental health and wellness challenges for youth and begins soon. You can get more information about the series and register through the website of the Alberta Centre for Child, Family and Community Research.

Unified Family Court on the Table Again?

Yesterday, an article appeared in both the Edmonton Journal and the Calgary Herald announcing that the interim premier of Alberta, Dave Hancock, supports the idea of a unified family court in the province. This is welcome news indeed.

Each province in Canada has two trial courts, a provincial court, established by the provincial government, and a superior court, established by the federal government under s. 96 of the Constitution Act, 1867. Although the superior courts are capable of dealing with every legal issue, the provincial courts only have the jurisdiction given to them by federal and provincial governments. As a result, family law matters can be heard in both the Provincial Court of British Columbia and in the Supreme Court of British Columbia, but only the Supreme Court can make orders about:

• marriage, divorce and the validity of marriages,
• the division of family property and family debt under the provincial Family Law Act,
• the division of property under the common law,
• family trusts, 
• restraining orders about property and debt,
• adoption, and
• custody, access, child support and spousal support under the federal Divorce Act.

This leaves an overlapping jurisdiction between the Provincial Court and the Supreme Court under the Family Law Act on:

• the recognition, appointment and removal of guardians,
• parental responsibilities and parenting time,
• contact,
• child support and spousal support, and
• protection orders.

But there are other important differences too. The rules and forms of the Supreme Court are far more complicated and far less accessible than those of the Provincial Court. Proceedings in the Provincial Court are free, while the Supreme Court charges filing fees as well as fees for each day of trial. There are Provincial Court buildings in most parts of the province; the Supreme Court only has buildings in major urban centres. 

As a result of this arrangement, people often start proceedings in the Provincial Court, only to have them eventually kicked over to the Supreme Court; the same family can be in both levels of court at the same time, pursuing similar or different legal issues; both courts can make orders on the same issues; and, the justice system is even more confusing than it is already. It is hardly surprising that most of the reports and studies looking at the family justice system have encouraged the creation of a single court, with one set of rules and one set of forms to handle with all family matters that must go before a judge for resolution.

In A New Justice System for Children and Families (PDF), published in 2005 by the Family Justice Reform Working Group of the Justice Review Task Force, the Working Group wrote that:

The system we make available to them today is complicated, intimidating and costs a great deal of money just when the family’s income is being stretched beyond its limits. Increasing numbers of people find themselves forced, by financial circumstances, to make their way without legal representation through a process designed for lawyers. A small number of these people go to trial on their own. Many settle, whether or not they have the information and support they need; some walk away, their conflict unresolved and possibly giving up what they need or were entitled to. 

Accordingly, it "strongly urged" a move towards a single court for family law matters. In Meaningful Change for Family Justice: Beyond Wise Words (PDF), the final report of the National Action Committee's Family Justice Working Group published in 2012, the Working Group observed that:

· there is a built-in tendency for adversarial process to polarize spouses and exacerbate conflict;
· parental conflict can be very harmful to children;
· conflict tends to protract process, which already tends to be complex, costly, lengthy and unpredictable;
· justice systems need to do a better job of providing integrated services and multidisciplinary responses to the many “non-legal” dimensions to issues that arise when families are restructuring; and
· the complexity of family breakdown and the relative inaccessibility of the courts results in many family law problems remaining unaddressed and unresolved.

At least partly as a result, two of the Working Group's recommendations are:

Recognizing that each jurisdiction would have its own version of the unified court model, to meet the needs of families and children in each jurisdiction, that the two levels of government cooperate in the completion of unified family courts for all of Canada.

That a unified family court retain the benefits of provincial family courts, including their distinctive and simplified procedures, and that it have its own simplified rules, forms and dispute resolution processes that are attuned to the distinctive needs and limited means of family law participants.

In support of these recommendations, the Working Group observed that:

Modern family law requires specialized knowledge, interpersonal skills and dispute resolution methods. A unified family court consists of judges, professionals and staff who have the experience, aptitude and commitment to work with families and children. A specialized court is best suited to handle the volume and complexity of the work, while at the same time experimenting and innovating with new services and methods of dispute resolution.

(The Canadian Bar Association's 2013 paper, Reaching Equal Justice Report (PDF), noted that "specialized courts, both by problem type and target group, have been demonstrated to contribute to access to justice and quality of decision making" and "generally enhance efficiency.")

Likewise, Alberta's 2001 report of the Unified Family Court Task Force recommended that:

... a unified family court should be established in Alberta expeditiously: 

· to exercise all family-law jurisdictions and powers  

· to provide essential services to people involved in family-law disputes. 

The unified family court should be a division of the Court of Queen's Bench of Alberta.

Interestingly, the government of the day actually accepted these recommendations (PDF), although only "in principle." (The Court of Queen's Bench is, by the way, the province's superior court.)

Anyhow, according to the article, Mr. Hancock, leader of the current government, told the Journal's editorial board:

"It would be more efficient if we had — I'm going to say this out loud and get in trouble — a unified family court, so that there was one court that dealt with all of the issues with respect to child, family, divorce, and property. ... It would be more effective and efficient, and it would be better justice."

Damn right it would. Family law is not like other species of civil law. Family law proceedings involve people in a continuing close relationship, not people whose business relationship terminated long ago. Family law proceedings don't seek remedies for things that happened in the past, they try to make the best possible arrangements for the family's future. Family law proceedings don't end once all appeals have been exhausted, they keep going until the children leave home and finish school. There are few hard-and-fast rules in family law, unlike other areas of the civil law; virtually all decisions are made based on the unique circumstances of the particular family before the court.

Having a specialized bench with the training, experience and skills to deal with the multidimensional — and multidisciplinary — nature of family law disputes, offering one-stop shopping for litigants, is an idea whose time has long since come and needs to be adopted in the remaining provinces without unified family courts, including Alberta and British Columbia. This is not the silver bullet to cure access to family justice. as the courts are only one small part of family justice and are not the sole means by which family law problems are resolved, but it would be a significant improvement from what we have now.

British Columbia established a unified family court for a brief period between 1974 and 1976. It's time to get back on the agendum.

Update: 2 June 2014

According to a recent article in the Calgary Herald, the chiefs of both the Alberta Court of Queen's Bench and the Alberta Provincial Court are interested in having fresh discussions about establishing a unified family court in the province to improve access to justice. The author of the article, Jason van Rassel, also notes that:

"Establishing a family division within Court of Queen's Bench could also allow judges with more experience in family law to specialize."

This is true, and very important. Family law cases cannot be treated like any other sort of civil case. They demand an extraordinary sensitivity and a knowledge that goes far beyond the legislation to appreciate the nuances of age-appropriate parenting plans, the psychology of separation and the effects of parental conflict on children. A specialist bench would be a boon to separating Albertans.

Children's Brain Development: Amazing Video from Alberta Family Wellness

The Alberta Family Wellness Initiative is a non-governmental organization that describes itself as "a multi-disciplinary initiative that connects early brain and biological development and children's mental health with addiction research, prevention, and treatment" which "seeks to translate current research into sound policy and practice on behalf of Alberta families," and is funded by the excellent Norlien Foundation.

The Initiative's website is full of interesting information on childhood developmental psychology and the development of children's brains, with pages on topics including

• brain architecture and development
• building cognitive, emotion and social capacities
• positive, tolerable and toxic stress
• interventions and treatments in children's mental health

and includes and extensive series of educational videos and print resources that ought to be very useful for parents, family law lawyers and mental health professionals.

In October 2013 — I'm sorry to be late on this — the Initiate published a wonderful animated video on children's brain development. Among other things, the video talks about positive stresses that improve children's functioning and ability to deal with change, and negative stresses, such as from parental conflict, abuse or addiction, that can negatively impact on the development of children's brains with effects that last into adulthood. The problem of children's response to negative stresses is particular important in high conflict families, whether the parents are in an intact relationship, separating or separated. 

The video is incredibly engaging and well worth watching, particularly for parents enmeshed in conflict. If you haven't found the link in the text above, you can find the video here:

www.albertafamilywellness.org/resources/video/how-brains-are-built-core-story-brain-development

Other helpful resources on high conflict relationships include the Parenting After Separation for Families in High Conflict program offered by Alberta Court Services, and the High Conflict Information Program being studied by the Nova Scotia Department of Justice. Judges, lawyers and mental health professionals working with high-conflict families should also get ahold of Bill Eddy's indispensable book, High Conflict People in Legal Disputes.

Alberta Associate Chief Justice Releases Dissertation on Maverick Litigants

Associate Chief Justice Rooke of the Alberta Court of Queen's Bench has just published his decision in Meads v. Meads. This decision is remarkable and should be, I suggest, required reading for judges, lawyers, court administrators and court clerks across the country.

The judgment in Meads is a treatise, a manifesto and a cri de coeur addressing a certain sort of disaffected, maverick litigant which has been clogging up Canada's courts with contrived, pseudolegal arguments and irrational, histrionic demands for a number of years. Mr. Justice Rooke's judgment identifies, analyses and deconstructs the arguments of vexatious litigants variously known as Detaxers, Freemen or Freemen-on-the-Land, Sovereign Men or Sovereign Citizens, members of the Church of the Ecumenical Redemption International and Moorish Law adherents, and makes recommendations as to how the court should manage such litigants.

The common theme among these groups of litigants, who Mr. Justice Rooke collectively refers to as "Organized Pseudolegal Commercial Argument litigants," is that they believe themselves to be privy to some secret legal principles which allow them to evade the normal rules and regulations that bind every other member of civil society. These people — and I have encountered them in my practice — drape themselves in cobbled-together pseudolegal verbiage and concepts, such as describing themselves as "corporate entities" or "juristic persons," claiming copyright over their own names and spelling their names with add-on hyphens and colons (the husband in the case before Mr. Justice Rooke, for example, referred to himself as "::Dennis-Larry:Meads::"), and filing bogus pseudolegal documents festooned with gibberish and meaningless symbols, such as thumbprints, multicoloured ink, pompous phrases set in capital letters, stamps and references to inapplicable, foreign or repealed statutes. Mr. Justice Rooke describes a number of improbable hypotheses common to these litigants, including:

1. that the Canada Revenue Agency has tricked persons into believing there is an obligation to pay tax;
2. that various deficiencies in judicial oaths prohibit court action;
3. that the relationship between the state and a person is a contract which one can opt out of;
4. that legislation, the common-law, and court principles and procedures are trumped by divinely ordained rules and principles;
5. that taxes and civil liabilities only attach to a “corporate name” and not physical persons;
6. that the courts have no power over litigants until they surrender to the courts; 
7. that state actors require the consent of persons, any state activity without consent is oppression; and,
8. that public notaries possess a judge-like authority that displaces the authority of Canadian courts.

After an exhaustive review of the many cases across Canada dealing with these and other favourite arguments, Mr. Justice Rooke concludes that the theories of Organized Pseudolegal Commercial Argument litigants have never gained purchase in a Canadian court.

Mr. Justice Rooke goes on to point out certain common linguistic, documentary, analytic and behavioural hallmarks of these litigants, and suggests a number of procedural devices that can be employed by the courts to manage and curb their excesses.

Court Staff:

1. Reject documents and materials that do not conform to established standards.
2. Mark non-compliant materials as "received" rather than "filed."
3. Forward potentially non-compliant materials to a judicial officer for review before filing.

The Judiciary:

1. Strike actions, applications and defences that are frivolous or vexatious.
2. Award punitive damages where the litigant's conduct is high-handed, abusive or oppressive.
3. Award elevated costs in favour of opposing parties to off-set their increases legal expenses resulting from the litigant's conduct.
4. Make orders that the litigant post security for costs at an early stage of the litigation.
5. Adopt tight approach to case management and assign a single judge to manage the case through to trial.
6. Consider whether the character and nature of the litigation warrants a finding that the litigant is frivolous and vexatious and should be barred from commencing further proceedings without leave.
7. Restrict who may appear as a representative or agent of the litigant.

It isn't particularly difficult to extrapolate from these comments principles of use to lawyers and self-represented parties dealing with such litigants. May I suggest:

Lawyers:

1. Apply to the chief justice for an order appointing a case management judge early on.
2. Consider whether the litigant's claim or defence discloses a legitimate cause of action or defence and apply to strike if it does not.
3. Do not waste your client's money replying to nonsensical pleading or applications in the same voluminous manner as the litigant's material, consider applying for directions.
4. Consider applying for security for costs, bearing in mind the generally high threshold that must be reached before such orders will be made. Search for other reported cases involving the same litigant.
5. Carefully scrutinize the background and motivations of persons seeking approval to appear as a representative or agent, and object where the person is going to exacerbate the situation.

Finally, the concluding remarks of Mr. Justice Rooke deserve repetition:

[71] Dealing with an OPCA litigant is difficult and frustrating. The fact that they are almost always self-represented adds to the challenge. What is worse is if a [OPCA proselytizer] is directly involved. I anticipate most judges will not tolerate representation by these persons ... particularly if the judge understands the nature of the [proselytizer] and his activities. ... 

[72] Timely and cost-effective resolution of these disputes requires that an action be pared down to its legitimate substance. That can be achieved by applications to strike irrelevant submissions and pleadings, and to categorize materials as irrelevant except for the purpose of costs, vexatious litigation and litigant status, and contempt and criminal sanction.

Alberta Minister Pronounces upon the Proper Raising of Children

The CBC has reported that Alberta's Finance Minister, Iris Evans, has pronounced upon the raising of children in a recent speech to the Economic Club of Canada. According to the CBC, Minister Evans said that good parenting means that "when you're raising children, you don't both go off to work and leave them for somebody else to raise."

Of course, while we all wish we could stay at home to raise our kids, that's not always possible. Frankly, these days it seems that it's an almost universal economic necessity for both parents to bring home an income! One solution would be to raise the Canada Child Tax Benefit and the National Child Benefit Supplement to a level that would enable families to leave a parent in the home, but I'm not sure that such a suggestion would have much appeal to a conservative finance minister.