Lawyers' Magazine Publishes Rates Survey

Canadian Lawyer has published its 2012 survey of lawyers' fees (PDF), which includes reports on the rates charged for common family law activities, broken down by region and size of firm.

Court Services Suspends Hearing Day Fees in Supreme Court

The Law Society advises that the Court Services Branch of the Ministry of Justice — the benighted office responsible for running courts throughout the province — has suspended the processing of payments or issuance of invoices for hearing fees under the Supreme Court Civil Rules and Family Rules.

Hearing days fees are fees charged by the Supreme Court for trials. Under Appendix C, Schedule 1 of the Family Rules, hearing day fees are payable on a tariff which increases with the length of trial:

• nothing for each of the first 3 days;
• $500 per day for the 4th to the 10th days; and,
• $800 per day for 11th day and onwards.

The catch, however, is that the person responsible to pay these fees isn't the party who wins or loses or the person who is awarded their costs, it's the party who sets the action for trial! This can lead to some dickering and brinksmanship about who will wind up setting an action for trial.

The Branch's decision to stop collecting these fees arises out of the court's recent decision in Vilardell v. Dunham, In this case, the claimant had asked the court for an order that she be exempted from paying the hearing fees and, once the trial was done, the court heard her argument on the issue, with submissions by the Canadian Bar Association British Columbia and Trial Lawyers Association of British Columbia as intervenors. At the application, the issue was not whether the claimant could afford the fees (she could, she was a veterinary surgeon), but whether the rules' provisions for the fees were constitutional. This is the relief the claimant sought:

"(b)a declaration that the imposition of fees for the hearing of a trial infringes a right of access to justice and thereby offends the rule of law and is therefore inconsistent with the Canadian Constitution;
"(c) a declaration that the imposition of fees for the hearing of a trial infringes s. 96 of the Constitution Act, 1867 and is therefore unconstitutional;
"(d) a declaration that the imposition of fees for the hearing of a trial infringes s. 7 of the Charter and is not justified under s. 1 of the Charter;
"(e) a declaration that the imposition of fees for the hearing of a trial infringes s. 28 of the Charter by denying women the equal protection of s. 7 which denial is not justified under s. 1 of the Charter;"

I won't recite the court's analysis; it is masterful and deserves a thorough review rather than the hackneyed summary I could provide. At the end of the day, the court held that:

• access to justice is a fundamental constitutional right which may not be abrogated by Parliament or the provincial Legislature;
• the constitutional obligation of the provinces to administer justice does not not include the power to hinder the court's functioning;
• the hearing day fees imposed by the province are a barrier to access to justice; and,
• hearing day fees are unconstitutional.

According to the Law Society, "the Branch has been advised that the ruling is being appealed by government and a decision is pending regarding whether or not to file a motion to apply to the court for an order staying further proceedings." Stay tuned.

As I've said, the judgment is masterful. Here is my favourite passage, from paragraph 425:

"The court cannot fulfill its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents."

Happy "Family Day"

Premier Christy Clark today announced that the second Monday in February will now be known as Family Day, a brand new statutory holiday. The Premier explained her reasoning thusly:

"Having our own unique day in B.C. creates distinctive opportunities for families and local businesses. British Columbians will be able to enjoy all kinds of local attractions with fewer lineups and less out-of-town traffic."

In the happy eventuality that Family Day aligns with Valentine's Day, which it surely must every seven years or so, perhaps Family Day will do double duty as family-making day.

The first Family Day will be celebrated on 11 February 2013. Enjoy the diminished traffic.

Update: 3 June 2012

"What's a statutory holiday," you ask? I'm glad you did. A statutory holiday is a day that is defined as a "holiday" within the meaning of s. 29 of the Interpretation Act. Those holidays, at present, are:

(a) Sunday, Christmas Day, Good Friday and Easter Monday,
(b) Canada Day, Victoria Day, British Columbia Day, Labour Day, Remembrance Day and New Year's Day,
(c) December 26, and
(d) a day set by the Parliament of Canada or by the Legislature, or appointed by proclamation of the Governor General or the Lieutenant Governor, to be observed as a day of general prayer or mourning, a day of public rejoicing or thanksgiving, a day for celebrating the birthday of the reigning Sovereign, or as a public holiday;

Collaborative Practitioners and Child Interviewers: Two New Groups Launch in May

The new Family Law Act has spurred somewhat of movement toward organization among the family law community. In some cases, like that of the BC Hear the Child Society, existing groups have been prodded into action, and in others, like those of the BC Collaborative Roster Society and the yet-to-be-named family law arbitrators association, new groups are organizing themselves from scratch.

The impetus likely comes from the definition of family dispute resolution processes at s. 1 of the act:

"family dispute resolution" means a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside court, and includes ...

(b) the services of a parenting coordinator under Division 3, 

(c) mediation, arbitration, collaborative family law and other processes ...

The definition is important, because certain other provisions of the act - notably the provisions for the enforcement of parenting time and contact at ss. 61 and 63, and for the making of conduct orders at ss. 222 to 228 - allow the the court to refer parties to family dispute resolution in the middle of a court action.

This month, we've seen the formal launching of the BC Collaborative Roster Society, in Vancouver on 10 May 2012, and the BC Hear the Child Society, in Kelowna, Vancouver and Victoria on 10, 14 and 16 May 2012. The BC Hear the Child Society will hold an event in Kelowna on 7 June 2012.

BC Collaborative Roster Society

This group has followed up on the recommendations of the Family Law Working Group in 2005 that a roster be established for collaborative practitioners in order to provide the public with a roster of qualified  practitioners in the collaborative practice model. According to the group's website:

"The BC Collaborative Roster Society provides an opportunity for the public to access information about Collaborative Practice, as well as a province-wide roster of professionals who are trained, experienced, and committed to excellence in Collaborative Practice. 

"The BC Collaborative Roster Society is committed to furthering the growth of high quality Collaborative Practice through continued training and support of collaborative professionals."

The lawyers and mental health professionals on the roster have all met the society's rather exacting membership requirements (PDF).

The group's board of directors is composed of Lisa Alexander, Robert Colby, Bev Churchill, Cally Farr, Karen Henry, Deirdre Severide and Danny Zack, led by president Nancy Cameron, QC. 

BC Hear the Child Society

This group describes itself as "a non-profit organization that aims to give every child the opportunity to share their views and have them heard when their best interests are decided in the family justice system." The group offers a roster of lawyers and mental health professionals who have met the society's membership requirements to prepare non-evaluative reports.

According to the group's website:

"The purpose of a non-evaluative child interview is to listen to the child so that the child can express his or her views in relation to family breakdown or transition, and have them considered in decisions made about their best interests. The Interviewer does not assess the child, his or her best interests, or the parents."

The group's board of directors is composed of John-Paul Boyd, Trudi Brown, QC, Robert Colby, David Dundee, Arlene Henry, QC and Derek Swain, led by president Ron Smith, QC.

Attorney General Publishes Family Law Act Resources

On 16 May 2012, the Ministry of Justice (formerly the Ministry of the Attorney General) released a variety of resource materials for the new Family Law Act. These documents are available online at

www.ag.gov.bc.ca/legislation/family-law/index.htm

and include:

1. a section by section explanation of the new legislation (PDF) with the government's interpretation of the meaning and intention of each provision;
2. a table of concordance (PDF) between the new Family Law Act and the old Family Relations Act;
3. a question and answer format discussion of common questions (PDF) about the new legislation; and,
4. a survey of the highlights of the new legislation,

among other helpful things. I am curious to see how the explanation of the new legislation will be used in practice. Although this document has a note on each page saying

"This document was developed by the Ministry of Justice to support the transition to the Family Law Act. It is not legal advice and should not be relied upon for those purposes."

whether it's legal advice or not, it's still a government-issued document interpreting new legislation and I expect will be used for precisely that purpose in court.

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.

If Only I Could Do It All Over Again: Hindsight is 20/20

If you ever have a hankering for disturbing family-related news out of the United States, start with the website of KTLA Television out of Los Angeles, California. If you tuned in this week, you might have been interested in stories with these headlines

• Mom Arrested for Allegedly Taking 5-year-old into Tanning Booth
• Drunk Grandparents Tow Girl in Toy Car Behind SUV
• Mother Pleads Not Guilty to Bleaching Toddler's Eyes
• Woman in Mexico Claims She's Pregnant With Nine Babies
• Crazed Father Bites Off Boy's Penis

(I'm not kidding, these stories all appeared under the Popular Stories banner on KTLA's website when I wrote this post), or you might have read about the peculiar case of Marek Olszewski.

Mr. Olszewski had the stunningly poor judgment, it seems, of visiting his dentist ex-girlfriend, a Ms. Machowiak, for help with a toothache a mere two days after dumping her for another woman. I can do no better than the fine reportage of KTLA itself:

Anna Machowiak agreed [to help], but instead of treating his toothache, she gave him a large dose of anesthetic and pulled out all his teeth.

"I tried to be professional and detach myself from my emotions," Anna Machowiak told the Daily Mail. "But when I saw him lying there, I just thought, 'What a bastard'." 

The 34-year-old then wrapped his head in a large bandage. 

When he came to she told him there had been some complications and suggested he wait until he got home to remove the bandage. 

"I knew something was wrong because when I woke up I couldn't feel any teeth and my jaw was strapped up with bandages," Olszewski told the Daily Mail. 

When Mochowiak later moved the bandages he was horrified. "I looked in the mirror and couldn't f***king believe it. The b**ch had emptied my mouth." 

Although I cannot quite put my finger on it, there is a lesson to be learned buried somewhere in this story. Perhaps it concerns the perils of dating the professionally-employed; perhaps it's about KTLA's asterisk policy.

(It was unusually difficult to come up with the title of this post. Alternatives included "An Eye for an Eye, A Tooth for a What?," "Tickling the Ivories," "Revenge Is a Dish Best Served with Floss" and "Ex With a Sweet Tooth, Yours." Have a suggestion of your own? Leave a comment.)

Update: 9 May 2012

Too funny to be true? Yup, says the Los Angeles Times.