• Can I change the prior court order or agreement?

Before a judge will permit a spouse to change a prior court order or separation agreement, the spouse must prove that there has been a material change in circumstances since the time of the prior court order or separation agreement. If there has been a material change, then the spouse must convince a judge of what the new order should be.

• Does it matter who starts the court proceeding?

The spouse who starts the court proceeding is called the petitioner or applicant. That spouse is the one who states what he or she wants the judge to grant and the reasons for it. The other spouse is called the respondent. He or she may either agree to some or all of the items claimed, deny and defend these claims and/or make a counterclaim against the other spouse.

• What is mediation?

Mediation is a process whereby the spouses jointly retain a professional mediator to help them reach an agreement that they are both comfortable with. Usually, only the spouses, without their lawyers, will meet with the mediator. The role of the mediator is to help the spouses arrive at their own agreement. The mediator's role is not to give an opinion or force one spouse to accept the other spouse’s terms. It is certainly not the role of the mediator to give legal advice.

Even when the spouses decide to mediate their issues, it is most advisable for each spouse to have a lawyer provide him or her with legal advice.

• Do both spouses have to be in the same room for mediation?

The better the communication between the spouses, the more successful mediation can be, because the spouses will each actively participate in the mediation process. However, when the spouses are unable to deal directly with each other, mediation can still be useful. In this case, the mediator may start by meeting with both spouses to discuss the objectives of the mediation and then separate them so the mediator can meet with one spouse at a time, in different rooms. The mediator can then shuttle between the two spouses to mediate an agreement.

• Now that I have decided to separate from my wife, what is the process to settle all our outstanding issues regarding our children, support and property division?

Before a spouse can decide upon the process, he should obtain legal advice to determine what his family law rights and obligations are. This is very important because the next few steps that he takes can permanently affect the outcome of his case and the legal obligations that he will assume. At this critical stage, each spouse should immediately obtain legal advise from an experienced family lawyer.

• Can you please list the different methods used to settle the outstanding issues?

Once the issues that need to be settled are identified and each spouse has obtained legal advice, the spouses may negotiate, mediate, litigate or arbitrate the outstanding issues. That is, the spouses may negotiate an agreement amongst themselves or instruct their lawyers to negotiate an agreement on their behalf. The spouses may agree to retain a mediator to assist them in reaching an agreement, or one spouse may decide that it is necessary to obtain a court order and therefore, decide to litigate. Alternatively, the spouses may decide to submit their issues to binding arbitration.

• What is neutral evaluation?

Other than mediation and litigation, other methods that are available to settle the outstanding issues are neutral evaluation, arbitration and mediation/arbitration. Neutral evaluation is a process whereby the spouses jointly retain a professional evaluator, who is usually an experienced family lawyer, to provide a formal opinion of the probable outcome of the issues presented to the evaluator. This process usually involves the participation of the spouses and their lawyers. The lawyers present the evaluator with a brief that consists of each spouse’s position, the relevant evidence and the legal authorities that he or she relies on. The purpose of neutral evaluation is to assist the spouses and their lawyers to overcome an issue that prevents the case from moving forward. For example, one spouse may believe that spousal support should be paid for a period of no more than five years, while the other spouse believes that spousal support payments should not end. In neutral evaluation, unlike mediation, the evaluator is specifically retained to provide an opinion and the reasons for that opinion.

• What is arbitration?

Other than mediation and litigation, other methods that are available to settle the outstanding issues are neutral evaluation, arbitration and mediation/arbitration. An arbitration is a process similar to litigation. The arbitrator hears the evidence of each spouse, and the arguments made by each spouse’s lawyer, and then delivers a written decision that is as enforceable as a court order. An arbitration is a formal process conducted under the Arbitration Act which requires the arbitrator to comply with certain procedures. As opposed to the long wait to get a trial date in court, spouses who agree to submit to arbitration jointly select an arbitrator, sign an arbitration agreement and schedule a date for the hearing. Arbitration and the decision rendered by arbitrator are usually kept confidential. The cost of arbitration is either shared by the spouses or, if they wish to give the arbitrator the power to award costs, the arbitrator may order one spouse to pay the other spouse’s costs of the arbitration.

• What is mediation/arbitration?

Other than mediation and litigation, other methods that are available to settle the outstanding issues are neutral evaluation, arbitration and mediation/arbitration. Mediation/arbitration is a dispute resolution method that is a hybrid of mediation and arbitration. There is a debate as to the propriety of a professional acting as both a mediator (who does not give an opinion or decision) and an arbitrator (whose only role is to give a decision). Mediation/arbitration is prohibited by the Arbitration Act, however, the spouses may specifically waive that prohibition. In mediation/arbitration, the mediator/arbitrator first attempts to settle the issues through mediation. Mediation may turn into arbitration if the mediator/arbitrator determines that mediation has failed. The mediator/arbitrator then ignores all the information that had been exchanged in the mediation and hears the matter afresh as an arbitration. The mediator/arbitrator cannot mediate while he or she is arbitrating and cannot arbitrate while he or she is mediating.

• How can mediation help us?

When a marriage ends, each spouse usually wants to resolve all outstanding issues as quickly and inexpensively as possible. But at the time of separation, there may be poor communication between the spouses. Although they may both want to resolve the same issues, they require a professional to assist them in arriving at terms that are fair and agreeable. A family mediator is a professional who will work with both spouses to facilitate a resolution of the issues that need to be resolved. Although many family mediators are lawyers by training, they do not represent either spouse. It is critical that each spouse retain a family lawyer to be advised of his or her rights (before and during the mediation process) and be provided with strategic advice. At the conclusion of a successful mediation, the spouses will have arrived at terms of settlement that can be incorporated into a separation agreement. This is prepared by one spouse's lawyer for review and consideration by the other spouse's lawyer.

• What are the different types of mediation?

Before mediation begins, the spouses will decide whether the mediation will be open or closed. In open mediation, the mediator may be asked by either spouse to write a full report on what happened during the mediation including the reasons why it was not successful. If the mediation is not successful and the case proceeds to court, the report may be considered by the judge. Also, the mediator may be required by either spouse to testify in court. In closed mediation, the information exchanged by the spouses is confidential. The mediator's report will only mention whether an agreement was reached, but will not provide any details of why an agreement was not reached. In closed mediation, neither spouse can compel the mediator to testify in court.

• What is the cost of mediation?

Family mediators operate as private businesses and are not regulated, therefore, their fees can vary. Some courts and community agencies offer mediation services for fees that are charged according to the spouses' incomes. A family lawyer will be able to provide recommended names of family mediators and the availability of mediation services through the courts and community agencies.

• If we have settled everything between ourselves, do we still need a lawyer?

Yes. Before any agreement is made, each spouse should obtain independent legal advise from a family lawyer who will advise the spouse on his or her family law rights and obligations. This is necessary in order to recommend terms of settlement that are fair, practical and enforceable. It may not seem necessary now, but it can prevent many problems from arising in the future and reduce further cost and grief. Each spouse's own family lawyer will protect that spouse's own legal interests, inform that spouse of issues that he or she may not have considered and ensure that any agreement is fair, practical and enforceable.

• What is collaborative family law?

This new concept originated in California. It is based on the idea that an increasing number of separating spouses want to settle their issues with the use of professionals in an inexpensive, amicable and respectful manner. Each spouse retains a family lawyer who is specially trained in collaborative family law. The spouses and their lawyers conduct a series of meetings to negotiate a resolution of the issues. The process is similar to mediation, however, in collaborative family law, if the negotiations are unsuccessful and litigation occurs, neither family lawyer can continue to represent the spouse in court and must withdraw from the case. This limitation is expected to encourage the spouses and their lawyers to use their best efforts in a productive, fair and focused manner to arrive at a resolution so that litigation is unnecessary. It is anticipated that spouses will be more committed and invested in the process to make the negotiations successful and arrive at a favourable outcome.

• What is a "competent lawyer"?

The Law Society of Upper Canada, the governing body that licenses and regulates all lawyers practicing law in Ontario, is also responsible for ensuring that all lawyers comply with the Rules of Professional Responsibility which define what it means to be a "competent lawyer".

Rule 2 of the Rules state that a "competent lawyer" is a lawyer who has and applies relevant skills, attributes and values in a manner appropriate to each matter undertaken on behalf of a client, including (a) knowing general legal principles and procedures and the substantive law and procedure for the areas of law in which the lawyer practices, (b) investigating facts, identifying issues, ascertaining client objectives, considering possible options and developing and advising the client on appropriate courses of action, (c ) implementing, as each matter requires, the chosen course of action through the application of appropriate skills, including legal research, analysis, application of the law to the relevant facts, writing and drafting, negotiation, alternative dispute resolution, advocacy and problem-solving ability, (d) communicating at all stages of a matter in a timely and effective manner that is appropriate to the age and abilities of the client, (e) performing all functions conscientiously, diligently and in a timely and cost-effective manner, (f) applying intellectual capacity, judgment and deliberation to all functions, (g) complying in letter and in spirit with the Rules of Professional Conduct, (h) recognizing limitations in one's ability to handle a matter or some aspect of it, and taking steps accordingly to ensure that the client is appropriately served, (i) managing one's practice effectively, (j) pursuing appropriate professional development to maintain and enhance legal knowledge and skills, and (k) adapting to changing professional requirements, standards, techniques and practices.

As you can see, a competent lawyer is not only a person with a law degree and licence to practice law, but a lawyer who possesses a long list of skills, attributes and values that will benefit the client in a time of need.

• How do you put a dollar value on 38 years of physical, psychological and sexual abuse committed by a husband and father?

Mr. Justice Lofchik was asked this very question and stated that "where a husband and father preys upon members of his family, no amount of money can adequately compensate them for what they have been through." He decided that an appropriate amount is $300,000—the highest award in Canadian history for civil damages resulting from abuse within the family.

On March 12, 2002, the court rendered its decision in the case of C.S.F. v. J.F. [2002] O.J. No. 1350 after hearing evidence from Catherine Flachs who had testified at trial that during her 38-year marriage to the defendant John Flachs, a Hamilton businessman, he regularly punched her with his fists, kicked her, pushed her, spat on her, strangled her, caused burns to her body, beat her with a cane and, on one occasion, stepped on her hand when she reached for a hearing device which had fallen out of her ear when he struck her. Over the years she had suffered injuries such as bruised ribs, broken ribs, a punctured lung, sprains, bruises and having her hair pulled out by the roots. She also testified about being raped on one occasion when she refused to have sex with her husband.

Lorraine Van Der Slyke was one of the couple's three daughters. Ms. Van Der Slyke witnessed the continued and repetitive abuse suffered by her mother and became a victim of abuse herself. The defendant hit and punched her in the face and dragged her by the hair. He sexually assaulted her by touching her on several occasions and lying on top of her on another. Ms. Van Oer Slyke attempted suicide when she was 16 years old and stayed at a youth shelter for nine months.

In reaching his decision, Mr. Justice Lofchik stated that "the defendant here abused his position as head of the household and turned the home into a place of fear and brutality."

• Why should I hire a lawyer when I can buy the court forms and fill them out myself?

Do-it-yourself kits are available. However, simply filling out forms is not the equivalent of obtaining critical legal advice and professional representation. The court system involves very serious and complex issues that will affect your life and the lives of your children. A person who fills in a blank court form is under the false impression that his or her legal rights and obligations will be properly determined by a judge. The prejudice to your case, the probable delays and the unnecessary stress is far more expensive than the cost of proper legal advice and representation.

Many clients do not understand that the information they put in court forms may be damaging to their case and can never be removed from the court record. Many clients do not understand what legal rights are available to them and what strategies they should employ to advance their legal interests. Many clients do not understand how to present their case, orally and in writing, so that they will achieve their objectives in the fastest, simplest and least costly method.

Family lawyers are educated, trained and licensed to represent spouses in court. Family lawyers are familiar with recent changes in the law and are familiar with the court process. The court process is complex. It is based on rules of procedure, such as the Rules of Civil Procedure and the Family Law Rules. The relief sought is based on legislation such as the Family Law Act and the Children’s Law Reform Act. A Family lawyer is professionally trained to prepare your court documents and make oral arguments to a judge who will decide the outcome. It is critical to obtain legal advice and representation by a family lawyer when separating.

• Which parent chooses/decides a child's name?

In the June 19, 2002 decision of Kreklewetz v. Scopel, the Ontario Court of Appeal decided that Ontario law permits the mother, not the father, to select the child's name.

The court held that the Vital Statistics Act allows a mother to have the ultimate ability to determine the surname of her child in circumstances where the father is unknown to or unacknowledged by her. That is, a mother may admit the identity of the father, but then refuse to acknowledge him for the purpose of naming the child.

In this case, the father and the mother had been involved in a sporadic relationship ending shortly after the birth of their son in 1998. The mother was the primary caregiver to the child and the father exercised access and paid child support.

The parties had a dispute regarding the child's name and the father applied to the court for an order to change the child's name. After being denied this relief, the father appealed to the Ontario Court Of Appeal, where his appeal was dismissed.

The appellate court ruled that the Vital Statistics Act expressly provides that if the mother certifies the child's birth and the father is unknown to or unacknowledged by her, she may give the child her surname. The court held that the Ontario legislature had made a policy decision to allow a mother to have the ultimate ability to determine the surname of the child. The appellate court was not prepared to override that policy.

• How can communication between separated parents be improved?

Communication between separated or divorced parents can be problematic. Depending on the age, health and circumstances of the child, these parents may find it necessary to communicate with each other anywhere from several times daily to at least weekly.

For some parents, ongoing conflict can cause communication to degenerate, leading to more difficulties. With this in mind, several strategies are often suggested, such as telephone contact or a communication book. Both of these strategies pose problems.

The telephone requires hearing the emotional tone of the conversation which can easily lead to the conversation degenerating. Sometimes a parent will tape the conversation for use in court, but then it becomes questionable if this party goaded the other to increase conflict for the taped conversation. Further, clandestine taping inflames the bad feelings of the other parent who may seek retribution.

Communication books or notes have the benefit of providing a permanent record and keeps the parents apart, but poses two other concerns. The first is that parents rely on the child as courier. This places the child directly in the middle of the parental conflict by observing the parent's emotional response as the message is read. Second, if the message is only delivered at the time of access, planning is difficult. Communication requires a dialogue to accomplish agreements as simple as access arrangements. With a communication book, the messages often take the form of directives from one parent to the other with the alternate parent left feeling controlled. So as a solution, this too can contribute to ongoing conflict between parents.

Enter email. Email provides an alternative communication tool to help parents transmit messages. It allows for a cooling off period prior to replying and provides for a permanent record. The use of email keeps the communication away from the child and removes the emotional impact carried by voice.

Because parents can respond back and forth, it also allows for dialogue and so reduces the risk of one parent just providing directives as per the communication book. The email trail can be reviewed if a parent has missed a point and also serves as a clear reference if a parent forgets the content of an agreement. The electronic record can easily be printed by either parent. As such, both are more likely to remain on good behaviour knowing the record can be used in court or be made public.

Next time separated parents in conflict need to chat where conflict exists, try email, but consider these guidelines:

• Stick to the issues.

• Keep the language clean and appropriate.

• Prepare and save your message. Wait 1 - 24 hours to review and edit a message before sending it.

• Keep a record and back-up these files.

• Password-protect these files to keep them out of view of your child.

• Remember, these emails can be used in court. Do not act in a way that can be used against yourself.

As a communication strategy, email is not recommended to necessarily make a poor situation better, but it is suggested as a potential solution to keep a poor situation from getting worse. In the event that there is a court ordered restriction on face-to-face or voice contact, email may provide a reasonable solution for parents to still communicate.

Gary Direnfeld is a child behaviour expert, a social worker, and the author of Raising Kids Without Raising Cane (Secrets of the Trade 1992). Since graduating with a Master of Social Work degree from the University of Toronto in 1985, Gary has not only helped people get along or feel better about themselves, but has also enjoyed an extensive career in public speaking. He provides insights on issues ranging from child behaviour management and development, to family life, to socially responsible business development.

Courts in Ontario, Canada, consider Gary an expert on matters pertaining to child development, custody and access, family and marital therapy and social work.

• Is a person presumed innocent of a criminal charge in family court?

In the 2003 decision of C.H. v. Durham Children’s Aid Society, the family court judge decided that the father’s criminal charges demonstrated a pattern of physical altercations and anger management issues. Even though the criminal charges were eventually dismissed, they were relevant to deciding what was in the children’s best interests.

The two children had been in the care of the Children's Aid Society since April 11, 2001. The father was granted supervised and semi-supervised access. On April 29, 2002, the father was charged with assaulting his girlfriend. He was in jail until the criminal charges were dismissed on June 20, 2002, after which time the access visits resumed. On September 5, 2002, the father was again criminally charged with assaulting his girlfriend. He alleged that she assaulted him, but she was not charged. The father’s criminal charge was dismissed on September 24, 2002.

The family court judge stated that “the father's recent behaviour had been problematic. He had been inappropriately angry and confrontational with Children's Aid Society. When he was granted access, he did not abide by reasonable expectations…He encouraged the children to lie about the visits. He allegedly threatened harm to one of the children’s caregivers…He increased the stress on at least one of the children by a veiled threat that he knows where their mother lives. He continues to be involved in episodes of domestic strife which result in criminal charges being laid. Although these charges are eventually dismissed, there is a pattern of physical altercations and anger management issues.”

The father appealed this decision, but the appellate court decided that the family court judge’s decision was correct.

• Do the police have the legal authority to enter your home to end an argument that turns physical?

In the April 29, 2003 case of R. v. Sanderson, the Court of Appeal of Ontario decided that they do. In that case, David Sanderson assaulted his girlfriend, Karen MacLaurin, and threatened to kill her dog and burn her property. Ms. MacLaurin fled the house shoeless and in her pyjamas in the middle of the night and went to a friend’s apartment. The police were called, and four officers accompanied Ms. MacLaurin to the house to retrieve her property. Ms. MacLaurin let herself and the officers into the house with a key. She wanted to get some of her belongings from the bedroom, but Mr. Sanderson stood in the bedroom doorway and refused to move out of the way when he was asked to do so by the police. He was arrested and criminally charged. At trial, Mr. Sanderson was convicted of a number of criminal offences relating to the alterca­tion with Ms. MacLaurin, but he was acquitted of obstructing a peace officer on the basis that the conduct of the police in the residence was unauthorized. The trial judge held that once the officers decided not to arrest Mr. Sanderson upon their arrival at the house, they ought to have left the house and pursued alternate remedies to protect Ms. MacLaurin’s property, and should have advised Ms. MacLaurin to wait and do nothing until the morning.

However, the Court of Appeal of Ontario reversed this decision and ruled that the police had the authority to enter Mr. Sanderson’s home in order to discharge their duty to preserve the peace and protect property, and their entry did not involve an unjustifiable use of police power. The appellate court stated that there is now a much greater recognition by the police of the extent and seriousness of the consequences for victims of violence when the police fail to respond. It is very much in the public interest that the police, in the discharge of their public duties, be willing and able to assist victims of domestic violence in leaving their relationships and their residences safely with their belongings. That is precisely what the police did in this case.

• What is a DRO?

A dispute resolution officer (DRO) is a lawyer who is a member in good standing of the Law Society of Upper Canada, has practiced primarily in the field of family law for a minimum of ten years, and has been appointed to assist the judges and the court system. At Toronto's divorce court—the Ontario Superior Court of Justice, the DRO meets with separated spouses before their case proceeds to a hearing before a judge to attempt to resolve their case, or at least to narrowly define the issues and create a timetable to proceed to a hearing.

DRO's are typically involved in cases where one spouse is applying to the court to change a child support order or to change the parenting plan. The programme has been very successful. Approximately two-thirds of the cases are settled by the DRO without proceeding before a judge. Those cases that do proceed to a hearing before a judge have benefited by the DRO assisting the parties in defining the issues and ensuring that the proper evidence is submitted to the judge.

• Is it legal to secretly videotape your child's nanny?

When Carolyn Jamieson was criminally charged with assaulting 20-month-old Leandra, she argued that the videotape should be excluded from evidence because of her constitutional right to privacy.

On April 30, 2004, the Ontario Superior Court of Justice, in R. v. Jamieson [2004] O.J. No. 1780, dismissed the nanny’s application to exclude the videotape.

Leandra was born with multiple medical challenges. She underwent corrective surgery for a gap in her esophagus. It was not a complete success. When she was one year old, she had heart surgery. Leandra had hearing and vision limitations. She required twenty-four-hour care. Several private agencies supplied nurses. Comcare was one of the agencies. Carolyn Jamieson was employed by Comcare. She became Leandra’s primary care nurse.

In March 2002, Leandra’s parents observed Leandra to have facial and other bruising. Some of her hair was found in the crib. Leandra was later found to have a fractured left leg and a swollen arm. Her parents were concerned and sought various medical explanations. They queried that the cause of these injuries might be physical abuse by one of Leandra’s nurses. They decided to install a "nanny camera." The camera, which was concealed, was focused on the crib located in the living room.

Leandra’s parents were devastated when they watched the videotape recording Ms. Jamieson assaulting Leandra. They immediately called the police and took Leandra to the hospital.

In the end, the court ruled that the videotape would be admitted at trial because it was cogent evidence of the crime and was an accurate representation of the actual event. The court went on to say that because this was a very serious criminal charge of aggravated assault, the rights of the child had greater priority over the accused's right to privacy and that excluding this evidence would bring the administration of justice into disrepute.

• Can a child’s personal diary be used in a family court case?

In the May 31, 2004 case of Children's Aid Society of Haldimand-Norfolk v. C.C, Justice Thibideau found this to be a novel point of law and was forced to consider the competing arguments.

The Children’s Aid Society (CAS) wanted to rely on the information in the diary detailing the child’s fears as part of an ongoing investigation of child abuse and as part of an effort to protect the child from abuse.

The court found that, on the one hand, CAS’ mandate is protect children whom are in need of protection and, therefore, CAS needs to use the diary to prove that its intervention in the family’s life is justified. On the other hand, a 12 year old child has a right to privacy and should not have to disclose the private and confidential notes in her diary, especially if this disclosure would cause serious injury to her relationship with her parents.

CAS argued that that, if all documents of a private nature that are made by children were not usable, then children would be at a much greater risk of abuse.

In the end, since the child had disclosed to the investigating CAS worker what was written in the diary, the court decided that the diary would not be disclosed, but that the verbal evidence of what the child disclosed to the CAS worker could be used.

• Can you sue the police for failing to investigate a complaint of domestic violence?

That is exactly what 12-year-old Michelle Mooney and her seven-year-old sister Kristy did, along with their mother Bonnie, in the case of B.M. v. British Columbia (Attorney General), Bonnie’s common-law husband Roland Kruska broke into her home on April 29, 1996 and shot and killed Bonnie’s friend and wounded Michelle. He then turned the gun around and killed himself.

In 1991, Bonnie began to live with Roland Kruska. The relationship was deeply troubled. Roland had a history of serious violence. His criminal record included convictions for trafficking, breaking and entering, theft, assault causing bodily harm, unlawful confinement, sexual assault and manslaughter.

Prior to the fatal event of April 29, 1996, there were four incidents of domestic violence between Bonnie and Roland. In the last one, Roland flew into a jealous rage and choked her with his hands.

Bonnie testified that she feared Roland and felt powerless under his control, but after each incident, Roland expressed remorse, and that is why she took him back.

Bonnie did not complain to the police about the first three incidents, but she did report the last assault. As a result, Roland was convicted of assault. Even after this conviction, Bonnie was still in contact with Roland because their property division had not yet been resolved. Roland wanted $15,000 for his interest. They agreed to meet on March 11, 1996, at a park, because, Bonnie said, she felt it was safe to meet in an open public place. Soon after they met, Roland became agitated, and when Bonnie attempted to leave, Roland moved his truck into her car’s path. He then chased her through the downtown area. Bonnie drove through stop signs and red lights to evade him. Finally, she circled a block where she knew her friend lived, sounding her horn to attract attention. Roland gave up the chase at that point.

Bonnie then proceeded to the RCMP to complain about Roland’s behaviour. Bonnie provided a written statement to the RCMP. Constable Craig Andrichuk was assigned. Constable Andrichuk examined Bonnie’s written statement, questioned her briefly about her encounter and obtained a copy of Roland’s criminal record. After speaking with his commander, Constable Andrichuk determined that there were insufficient grounds to arrest Roland. He recommended that Bonnie see a lawyer about obtaining a restraining order.

Between then and the fatal event, there were a few telephone calls between Roland and Bonnie. On the morning of April 29, 1996, they had a heated telephone conversation. Later that night, Roland came to Bonnie’s home and smashed in the sliding glass door with the butt of his shotgun and entered her home. Bonnie and her two daughters were home with Bonnie’s friend. Bonnie leaped out of her bathroom window. Roland then shot and killed Bonnie’s friend. Roland then saw Bonnie’s daughter Michelle sitting on the stairs and shot her in her right shoulder. After setting fire to the house, Roland killed himself.

In this case, the trial judge was asked to award compensation to Bonnie, Michelle and Kristy. After hearing all of the evidence, the trial judge decided that the physical and emotional injuries suffered by the Mooneys were significant and assessed Michelle's damages at $150,000, her loss of future income at $100,000 and cost of future care at $25,000. He also assessed Bonnie’s damages at $75,000 and Kristy's damages at $15,000.

But when the trial judge was asked to find that the RCMP and Constable Craig Andrichuk were liable for these injuries, he ruled that the police failed in their duty to the Mooneys, but could not find a causal connection between this failure and the Mooneys’ injuries. The lawsuit was dismissed.

On July 22, 2004, the Mooneys appealed this decision to the British Columbia Court of Appeal to examine whether the failure of the RCMP to investigate a complaint of domestic violence can result in liability. They argued that the police’s failure to act added to the already existing risk of violence and that liability must follow.

The appellate court confirmed the trial judge’s findings that Constable Andrichuk's investigation fell short of the required standard of care, but that this failure did not mean that a proper investigation would have prevented the events of April 29, 1996.

• Who is the voice for Ontario’s vulnerable children ?

Since 1985, the Government of Ontario's Child Advocate has the mandate to represent children and youth in the child welfare system (such as children cared for by children's aid societies in foster homes and group homes), children in the mental health system, children with physical and developmental disabilities and children in schools for the deaf and blind.

Ontario law requires that such vulnerable children are made aware of their rights. They should not suffer any unacceptable treatment or violence in their residential settings. Children’s special needs or the unique needs of children of aboriginal descent must be respected. Such children are entitled to have privacy to contact their family, a lawyer or an advocate, and for complaints to be made to the Child Advocate.

Recently, the Child Advocate was involved in a lawsuit brought by the parents of severely disabled children who sued the Government of Ontario for being forced to give up custody of their children to the state in order to access the proper care that their children needed - estimated to cost as much as $200,000 per year for each severely disabled child.

For the past 14 years, Judy Finlay has been Ontario's Chief Child Advocate and employs 10 Child's Advocates across the province.

New legislation intends to make the Child Advocate an officer of the legislature, to be selected by an all-party legislative committee and to report directly to the legislature so as to ensure accountability. Currently, Ontario's Child Advocate reports to the Minister of Children and Youth Services.

The proposed changes are based on a report called 'A New Advocacy Model for Child and Youth Advocacy in Ontario' that was completed in 2004.

Ontario's Child Advocate can be reached at 1-800-263-2841 or by email to advocacy@idirect.com

• What should I look for in a Family lawyer ?

Going through a divorce can be one of life's most stressful experiences. At a time of intense emotion, you are required to make critical decisions that will have a long-term impact on your future. Because the process can be so overwhelming, it is important to be guided by the right Family lawyer.

· Look for someone you can trust and talk to. You need to feel comfortable sharing information about yourself. The more informed your Family lawyer is about your situation, the more effective he/she can be in helping you.

· Rely on an expert. One reason the divorce process can be stressful is that many of your decisions will be based on information you may not have. A good Family lawyer will be able to answer your questions clearly and thoroughly.

· Expect objectivity. At a time when emotions are high, it's important to have an impartial ally to explain your options and to help you make the right choices.

· Find a lawyer with good judgment. While some of the decisions you will make are legal, others are practical, but no less crucial. You may need to decide where to live, whether you should see a doctor, or go to the police. You may want feedback on what to tell your children and family. The right lawyer will be able to offer you invaluable advice, based on experience and good judgment.

· Look for a lawyer with connections. Many people assume that because they're getting a divorce, they will have to go to court. In reality, divorce cases rarely go that far. There are all sorts of experts in the legal community trained to assist you in coming to a peaceful agreement with your partner long before the stress and expense of a trial is required. Specialists like mediators, arbitrators and parenting coordinators may be appropriate in your situation. A good lawyer will be able to assess your needs and connect you with the right experts.

· Find a lawyer with vision. A good lawyer understands that although your marriage has failed, your life still holds as much promise for success as ever. By helping you create a short-term plan, your lawyer will make certain that you and those you love are taken care of throughout the divorce process. A long-term life plan will ensure that you thrive in the future. For example, if you have children, you may worry about how they will adjust to their parents living in separate homes. With a good long-term plan, the children will benefit from having two parents who respect one another's separate parenting identity, and who appreciate the importance each parent has in their lives. A lawyer with foresight will lay the groundwork for your successful future.

• Can a Judge make a decision without giving adequate reasons ?

No. At least that is what was decided on August 4, 2006 by the Ontario Court of Appeal in the case of Lawson v. Lawson.

In that case, the spouses could not agree on anything. They proceeded to trial on nearly every issue that stems from a separation, including custody of their children, child support, spousal support, property division and their matrimonial home.

The Lawson couple were married in 1990. They separated in 2002, after 12 years of marriage. At the time of separation, they had 3 young children.

Shortly after they married, the couple moved into a house on a property on the Niagara Escarpment just outside of Grimsby, Ontario. The house had been previously occupied by the husband’s parents. The husband’s father had divided his farm into two parcels, one for each of his sons. The couple lived on the property for the duration of their marriage.

The trial lasted 9 days.

There were 20 witnesses who testified at trial.

After all of this, the trial judge made a final decision, but barely gave his reasons.

The husband objected to the entire order and appealed it.

As a result, the Ontario Court of Appeal examined the responsibility of a Family Court Judge at trial. It stated:

“It is the duty of a judge to give reasons for decision; it is an inherent aspect of the discharge of a judge's responsibilities. The appellant (husband) is entitled to reasons that are sufficient to enable him to know why issues were decided against him. The reasons need to be adequate also so that he can bring a meaningful appeal and this court is able to properly review the order. The reasons do not need to be perfect. Nor do they necessarily need to be lengthy. But, they must be sufficient to enable the parties, the general public and this court, sitting in review, to know whether the applicable legal principles and evidence were properly considered.”

In the end, the appellate court unanimously agreed that the appeal should be allowed, in part. It changed the order for child support and directed that the issues of spousal support and equalization of property return to court for a new trial.

• Can I sue my husband for not granting me a religious divorce ?

Stephanie Bruker married Jason Marcovitz on July 27, 1969. They both considered themselves to be religious Jews. After 11 years of marriage, Stephanie commenced divorce proceedings in 1980. She was 31 years old and Jason was 48 years old. With the assistance of separate lawyers, they reached an agreement on all matters. Their agreement included terms regarding the custody of their two children, child support and spousal support. The agreement also stated that they would appear before the Beth Din to obtain a Get immediately after the civil divorce.

Under Jewish law, a wife cannot remarry unless her husband agrees to give her a Get. A Get is a Jewish divorce. Only a husband can give one. A wife cannot obtain a Get unless her husband agrees to give it. Under Jewish law, he does so by releasing his wife from the marriage and authorizing her to remarry. The process takes place before 3 rabbis in what is known as a Beth Din, or rabbinical court. The husband must voluntarily give the Get and the wife consents to receive it. When the husband does not, the wife is without religious recourse, retaining the status of his wife and unable to remarry until he decides, in his absolute discretion, to divorce her. She is known as an 'Agunah' or 'chained wife'.

Any children she would have on a civil remarriage would be considered illegitimate under Jewish law. For an observant Jewish woman in Canada, this presents a dichotomous scenario. Under Canadian law, she is free to divorce her husband regardless of his consent. However, under Jewish law, she remains married to him unless he gives his consent. This means that while she can remarry under Canadian law, she is prevented from remarrying in accordance with her religion. The inability to do so, for many Jewish women, results in the loss of their ability to remarry at all. The vast majority of Jewish husbands freely give their wives a Get. Those who do not, however, represent a long-standing source of concern and frustration in Jewish communities

Stephanie's civil divorce was granted on February 9, 1981. Stephanie then made many requests for a Get. Jason consistently refused to provide a Get. This went on for 15 years. In July 1989, nine years after the civil divorce, Stephanie began legal proceedings against Jason claiming damages in the amount of $500,000 for her inability to remarry and for being prevented from having children under Jewish law. Jason argued that Stephanie had repudiated the agreement by continually seeking increases in child support and obstructing his relationship with the children. The case was scheduled to be heard on December 6, 1995. On December 5, 1995, Jason appeared before the Beth Din and granted Stephanie a Get. He was 63 years old and Stephanie was 46 years old.

Stephanie still continued with her claim for compensation. In the end, she was awarded $2,500 per year for each of the 15 years between the civil divorce and the Get, plus $10,000 for her inability to have children under Jewish law. The total of her award was $47,500.

Jason appealed this decision to the Quebec Court of Appeal. The trial decision was reversed. The appellate court found that Jason's obligation was religious in nature and could not be enforced by the courts.

This issue ended up in the Supreme Court of Canada.

On December 14, 2007, the Supreme Court of Canada decided that civil courts should address the gender discrimination that arises from religious barriers to remarriage. It was decided that Jason was not immune from liability for his breach by invoking his freedom of religion. The Supreme Court ruled that Jason's claim to religious freedom must be balanced and reconciled with Stephanie's countervailing rights, values and harm. The Supreme Court decided that, in this case, any impairment to Jason's religious freedom was significantly outweighed by the harm both to Stephanie personally, and to the public's interest in protecting fundamental values such as equality rights and a woman's autonomous choice in marriage and divorce.

• Is mediation really voluntary ?

Let's be honest... Separating spouses are not running to line up for any process to commemorate the death of their relationship. The separating spouse is usually in pain, angry, confused, scared and hopeless.

She is wanting to run away from the ruins of her marriage. She is not volunteering for anything at this stage of her life.

As an aside, the most satisfied client of mine, after thanking me for providing them with excellent and compassionate legal representation, follows the compliment with "I hope I never need to use you again."

When we use the term 'voluntary' we must recount the context... not from our perspective (we meet hundreds of separating spouses, whereas the client meets one Family law lawyer and we are in and out of courthouses almost daily, which does not cause us anxiety, whereas the very presence of a separating spouse in a courthouse causes tremendous stress and anxiety for her), but from the perspective of the client who never planned for this, wishes the pain would stop and feels helpless.

Can a person in this emotional state really be acting with volition and intent ?

When a spouse finds herself in this situation, she speaks to her friends and family, makes inquiries of what to do next and, eventually, lands in the office of a professional (therapist, lawyer and/or mediator) who guides her to the next step.

When this person 'volunteers' for mediation as a 'process', she is usually choosing the least of all poisons. The other alternatives are not available (reconciliation), not affordable (litigation) or impractical (doing nothing).

Another way to look at it stems from my observations on Wednesdays at the Family Court of the Superior Court of Justice in Newmarket. Wednesdays is motions day. Between 30 to 50 motions are on the docket each Wednesday. There is no limit placed on this list. There is no case management. There is no planning. It's a free for all. Each Wednesday, separating spouses and counsel line up at 10:00 a.m. to seek judicial intervention. There is a problem in the lives of these spouses. They could not resolve them. Their lawyers could not resolve them. They are nervous, worried and anxious…but hopeful. They hope that the motions' judge will hear their problem and declare a solution.

That can't happen. Why ?

One motions' judge cannot solve 30-50 domestic problems between 10:00 a.m. and 4:00 p.m. S/he may be able to help a few families. This of course starts after those spouses who have given up, failed to confirm their court attendance in advance, failed to attend court that day or have already resolved their dispute, are managed by the court. This usually takes 30 to 90 minutes. That is when the motions' judge announces that the remaining time in the day is not adequate to help the many remaining spouses in waiting.

Now for the notion of 'volunteering for mediation'.

The motions' judge announces that this court location offers mediation services. It is free and available. The judge reminds everyone that, regrettably, s/he cannot help most of those in the room.

So the spouses and counsel, in utter disappointment, consider the alternatives (leaving court with no solution, coming back next Wednesday and hoping to be heard, booking a fixed motion date in 4 months or... 'volunteering for mediation').

It is arguable that in these situations a person is acting under duress or desperation when opting for mediation.

Don't get me wrong. Mediation may be the very best option for this family. It may preserve the relationship... ensure mutual respect... permit the discovery of a cooperative solution... end the conflict... and save money.

But I query whether mediation was voluntary.

• What happens when a spouse makes a false or exaggerated complaint of domestic assault to the police ?

This is by far one of the most challenging dilemmas that face matrimonial lawyers.

The telephone call comes in over the weekend. The client was arrested by the police for domestic assault. She or he was released on bail terms that prevent her/him from returning home or having contact with her/his spouse until the criminal case is resolved (which can take months). In the meantime, her/his contact with the children is restricted.

The details come out.

The couple was living in the same home. For months, there have been arguments. Despite the tension in the home, they have been both caring for the children and meeting their daily needs. Neither spouse was willing to vacate the matrimonial home (although each wanted the other to move out). But, on this night, the couple had a bigger than usual fight. Words were exchanged. Tempers ran high. There was pushing and shoving. Eventually, things cooled down. A few days passed. Then one spouse decides to use this event to remove the other spouse from the home. That spouse attends the police station and makes a complaint of domestic assault. The police take a statement. Under pressure to ensure that reports of domestic violence are properly addressed, the police arrest the other spouse and remove her/him from the matrimonial home.

Now the divorce case begins.

One spouse is at a tremendous disadvantage. She/he is not allowed into the home. She/he cannot communicate with the other spouse. She/he has no (or limited) access to the children. She/he does not have a place of her/his own to spend quality time with the children. The court system is severely back-logged, so that the case takes months to be presented to a judge.

The spouse who was arrested is in dire financial straits. She/he needs to pay rent, while still required to contribute to the household bills and, usually, even pay child support to the spouse remaining in the home with the children. On top of this, she/he needs to pay two lawyers - a criminal lawyer and a matrimonial lawyer.

Devastating.

This really does happen.

But what doesn't usually happen is a Family Court Judge taking charge of the situation, identifying the misconduct, especially as it affects the children, and finding an immediate and appropriate remedy.

This happened recently in the Orangeville case of Shaw v. Shaw [2008] O.J. No. 1111.

On March 19, 2008, the Honourable Mr. Justice Pugsley was confronted with the case of Stephen Edward Shaw and Alison Shaw.

The Shaws were married in 2001 and separated in 2008. They had children who were 6 and 2 years old.

On March 11, 2008, Mr. Shaw attended at the Shelburne police station and complained that his wife had assaulted him on February 9, 2008 (one month earlier) while at a social function. Ms. Shaw was arrested and charged with assault. The resulting bail conditions barred her from the matrimonial home and stripped her of her custodial rights to the chil-dren. While Ms. Shaw was in police custody, Mr. Shaw obtained an emergency court order for custody of the children. The case came back before Mr. Justice Pugsley on March 19, 2008.

In his decision released a few days later, Mr. Justice Pugsley discussed his observations of this recurring problem - how police and criminal procedures impact and pre-empt spouses' family law rights.

He stated:

"the events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light, although her story is commonplace.

These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact.

Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of, or access to, the defendant's children without any consideration of the factors that this court must apply by law before determining incidents of custody or access.

This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada. Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted.

I observe, however, that the damage of which I speak is not from the laying of the charge - this will happen in any event, regardless of the manner in which the defendant is brought before the court. The way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties.

Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system - from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency - effect the lives of the members of the defendant's family. Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation. Routine orders excluding a party from the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved.

Such rote treatment of all matters of domestic assault can lead, on the one hand, to con-cocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit."

Mr. Justice Pugsley stated that Ms. Shaw's case illustrated the dangers of speedy or dis-cretionless criminal procedure.

In cautioning anyone who read this decision, he stated:

"I can only hope that no licensed lawyer in this province would have advised the father that the fastest way to get custody and exclusive possession of the family home was to report the mother's transgressions to the police."

"I can only hope that the (police) officers whom he (Mr. Shaw) saw do not believe that complainants in criminal matters decide whether charges are, or are not, to be laid."

In the end, Mr. Justice Pugsley acted fast to return this family to the status quo that pre-existed the criminal charge. Specifically, the children were to spend equal time with each parent on a weekly rotation.

Even though this court took the time to remedy the problem in this family's case, there are countless other cases where one spouse is severely prejudiced by the unfair operation of the criminal court process.

Let's hope that this decision signals a fresh look at the interplay between criminal law and family law procedures and how this affects a spouse's legal rights.

• Can a Teenage Child be Disciplined With Force?

In 2004, the Supreme Court of Canada considered the constitutionality of section 43 of the Criminal Code in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) (2004) 234 D.L.R. (4th) 257.

Section 43 is the section of the Criminal Code that provides a defence to parents and teachers who use force to discipline a child. It reads:

"Every school teacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances."

Then in 2006, a father was criminally charged for assaulting his 15 year old daughter. He relied on section 43 to defend himself on this charge.

The father's name is Barry. He was 57 years old and was married for 37 years. He and his wife raised their 4 daughters. This case related to his youngest daughter.

She was rebellious, had been sneaking out at night without her parents' permission and was not attending school. They were most concerned about her relationship with her boyfriend. They believed him to be violent and involved with drugs. They suspected their daughter was also taking drugs.

In their own words, they 'ran out of answers.' They turned to the Children's Aid Society (CAS) for help. She was placed in their care. Through the court process, orders were made restraining her boyfriend from having any contact with her.

Subsequently, CAS returned their daughter to the family home for a weekend visit. After hearing a suspicious noise in the house, Barry found the boyfriend in his daughter's bedroom. He held the boyfriend until the police arrived. The police arrested and charged the boyfriend.

On Thanksgiving weekend, their daughter left the home, again without permission. Barry went to look for her and found her with the boyfriend. They ran away. When Barry found them, they were both visibly under the influence of drugs. The boyfriend confronted Barry.Again, the boyfriend was arrested. Their daughter returned to CAS.

On November 18, 2006, the parents met with their daughter and her social worker at the CAS office. The purpose of the meeting was to discuss the child's return to the family home. It was agreed that she would go home for the weekend.

After leaving the office, the parents and their daughter went shopping and later went to a restaurant for dinner. After they arrived home, the mother overheard their daughter on the telephone making plans to attend a party where the boyfriend would be. The mother told her daughter that she could not go. She did not listen and left the home on her bike. When Barry arrived home, he went to look for his daughter and found her on a pay phone at a campground. He told her that she had to come home. She refused to go with him. He grabbed her by the shirt and took her to his truck. She broke loose, at which time Barry picked up her bike and put it in the back of his truck. He drove a short distance away, but decided to return.

At trial, he testified:

"I put the bike in the back and then I decided I'd head home, and then I had second thoughts. I said, no, I can't leave her here because I don't know where she's going and I'm concerned, so I went back. I hadn't drove very far. I went back and got her and then put her in the truck."

He grabbed her by the shirt and this time put her in the truck. They argued on the way home. Upon their arrival, Barry asked her to get out of the truck, but she refused. When he tried to take her out, she kicked him in the groin. He pulled her out of the truck by the arm and both went into the home. The child began to argue with her mother and left the house again. She returned to the pay phone and arranged for someone to pick her up and take her to the party so that she could meet her boyfriend. However, by the time she got to the party, he had left. The parents stayed at home for a period of time, having decided not to try and find their child again. They changed their minds and, after the mother found out the location of the party, they drove to the house, arriving there at about 2:10 a.m.

When they arrived, a group of people swarmed their vehicle. Barry called the police, who arrived shortly afterwards. Their child was outside of the house, yelling and screaming. As a result, one of the officers placed her in a police cruiser. She told this officer that she had been assaulted by her father and, as a result, she was taken to the hospital where she was examined.

Later that day, Barry was arrested.

At trial, the judge interpreted the law to exclude the section 43 defence for assaults against teenagers. He concluded that Barry's actions did not constitute 'correction' or 'discipline' and that the daughter was not capable of benefiting from such correction. Barry was found guilty.

Barry appealed.

Justice Robertson heard his appeal on January 28, 2008 and released judgment on March 13, 2008.

Justice Robertson stated that "the overall theme of the case is that while conflict between children and authority figures is normal, violence is not an acceptable response. Section 43 protects children from abuse yet allows authority figures, including parents, to carry out corrective duties to children. It is meant to ensure that minor matters do not result in criminalized parenting."

The appellate court found that Barry rescued his child when she did not want to be rescued. His daughter exercised poor judgment requiring intervention and guidance. This child was in need of protection from her own bad choices. She was not injured. Despite the return home of the child by force, she continued to rebel and went to the party. Her night ended when she was placed in a police cruiser.

Justice Robertson stated that the Supreme Court of Canada did not grant immunity to teenagers for bad behaviour, or an exemption to parents from the crime of assault. It offered support for authorities and families by striking a careful balance between the rights of children to be protected, and the responsibilities of parents or authorities to provide correction and discipline.

The court also considered the concept of "being capable of benefiting from the correction". The fact that a child will not immediately respond to correction or that the benefit of the correction is not directly visible does not mean that section 43 is not applicable. A positive benefit or consequence of correction is not always immediately obvious in children.

In the end, Justice Robertson stated:

"I find the father was justified in his use of force to correct his teenage daughter."

• How expensive can a divorce really be ?

When Marian Levitt was billed one million dollars in legal costs for her divorce, she appealed this bill all the way up to the British Columbia Court of Appeal.

On August 13, 2008, the appellate court concluded that the bill was 'fair' and ordered her to pay it.

By way of background, Marian married Bernard in 1958 and were married for 42 years. The divorce proceedings involved the division of approximately $12 million in assets and shares of family companies and assets.

Marian had terminated her first lawyer and then retained Irwin Nathanson from the law firm of Nathanson, Schachter & Thompson in late November 2001. Mr. Nathanson agreed to take on Marian's case. He did not discuss the basis on which he would be charging for his services, but said that he intended to bill a 'fair fee'. The trial lasted 29 days and then a two day appeal was heard.

The total amount that Mr. Nathanson billed for his fees was $833,400 and disbursements and taxes were $185,061.

The court registrar heard Marian's review of the bill. The registrar even heard expert evidence on the 'reasonableness' of the accounts by Lawrence Kahn, a senior family law lawyer. Mr. Kahn said that the file was complicated and the matter was highly contested. He noted that there was a significant amount of work that had to be done at the outset of the matter, and in a relatively short period of time, in order to be properly prepared for trial.

The review hearing itself lasted 10½ days.

The court registrar found that the legal fees charged to Marian were very high, but that she chose to engage top counsel for a 'carriage trade lawsuit' and that the fees charged must be measured with that in mind.

In the result, the court registrar certified the lawyer's fees, charges and disbursements in the total amount of $1,018,461.48.

Both of Marian's appeals were dismissed, with costs payable by her.

Nathanson, Schachter & Thompson v. Levitt [2008] B.C.J. No. 1529 (August 13, 2008).

• Who gets to name a child at birth ?

Past court decisions seemed to grant mothers the authority to select a child's name. But it is obvious that this is a tense subject. So much so that Douglas Gallant felt undermined when he discovered that his newborn daughter Kiera Mary-Lynn was not given his family name. He decided to seek a remedy from the court.

In the case of Gallant v. Lewis [2008] O.J. No. 2913, Mr. Justice Quinn considered this situation and released his decision on July 14, 2008. In that case, the court heard that Douglas Gallant and Suzanne Lewis began dating each other in April 2006, began cohabit-ing in October 2006 and separated in December 2006 when they were 20 years old. Suz-anne gave birth to their daughter, Kiera Mary-Lynn, on July 1, 2007. Douglas enjoys ac-cess to his daughter almost every day. Suzanne admits that she did not inform Douglas when she went to the hospital to give birth. She says that she did so deliberately, explain-ing that she "did not want him there." Douglas testified that it was his wish to be present.

Subsequently, Suzanne completed a Statement of Live Birth (Form 2) under the Vital Statistics Act filling out Section A ("child's information"), Section B ("mother's information"), Section D ("birth information") and Section E ("certification of informant"). Suzanne left Section C ("father's information") blank.

Douglas asked Mr. Justice Quinn for an order changing the child's surname to the hyphenated last names of the parties. He framed the issue to be: whether a mother has the right to arbitrarily exclude a father from the birth registration process and, more particularly, to arbitrarily use her last name as the surname for the child.

Mr. Justice Quinn felt that it would "bring the administration of justice into disrepute, be manifestly unfair to the father and not be in the best interests of the child", if the court were to enforce the child-naming provisions of Ontario's Vital Statistics Act. The court even re-ferred to British Columbia's similar statute that had been ruled unconstitutional as amount-ing to discrimination on the basis of sex.

This decision demonstrates that the right of a mother to arbitrarily exclude the father in the naming of their child was an example of sexual discrimination, leaving the father without recourse and rendering him a second-class parent. The court ruled that it was not in the best interests of a child to have his or her parents differentiated in this fashion.

Mr. Justice Quinn ordered that the Registrar General amend the registration of the child's birth to include the hyphenated surnames of the parties (in alphabetical order) such that the name of the child shall be changed from Kiera Mary-Lynn Lewis to Kiera Mary-Lynn Gallant-Lewis.

• What happens when one spouse has a lawyer and the other spouse chooses to not use a lawyer ?

The issue of self-representation in Family Court has become an epidemic.

Those spouses with very low income can obtain free legal advice and representation from Legal Aid Ontario.

Those spouses with high incomes can usually afford a private lawyer. However, the vast majority of Ontarians are middle class and simply cannot afford to retain their own lawyer, resulting in a huge number of separating spouses representing themselves in Family Court.

On one hand, the highly demanding nature of a Family Court case, coupled with the high cost of operating a law practice, render legal advice and representation from private lawyers very costly. On the other hand, every parent forced to defend a CAS proceeding or facing a child custody hearing must have legal advice and representation, and not be forced to navigate through the court system, prepare important court documents, deal with opposing counsel and make representations to judges on their own. This is further aggravated when the person needing a lawyer is a victim of domestic violence, an immigrant or the weaker party.

The absence of lawyers in such Family Court cases is a disservice to the public, to the legal profession, to the court staff, to the judges and, most importantly, to the unrepresented spouse.

In the Divisional Court decision of Cicciarella v. Cicciarella released on June 30, 2009, the 3 judge panel considered this very problem. In that case, the wife appealed a trial judgment dealing with property division.

The husband had been represented by a lawyer throughout this court proceeding and then, three weeks before the trial, he discharged his lawyer and chose to represent himself. On this appeal, the wife claimed that the trial judge interfered with the trial process in such an unreasonable and unfair manner that the trial judge precluded her lawyer from calling relevant evidence, restricted her lawyer’s cross-examination of the husband, conducted his own improper examination of the husband and refused to listen to her lawyer’s arguments.

The panel in Divisional Court stated that the increase in the number of litigants who appear without legal representation can pose special challenges for busy trial judges. They stated that leeway is allowed for a self-represented party, especially as it relates to procedural matters. The extent to which judges should afford an unrepresented litigant additional leeway with respect to court procedures and the rules of evidence is an increasingly vexing problem for courts at all levels. The panel stated that it is generally recognized that the trial judge should provide some assistance to an unrepresented litigant. But at the same time, this must be done in such a way as not to breach either the appearance or reality of judicial neutrality.

The 3 judge panel wrote that “the judge cannot descend into the arena from the bench and advocate for the self-represented litigant.”

The problem has become so grave that, in 2006, the Canadian Judicial Council adopted a “Statement of Principles on Self-represented Litigants and Accused Persons.” The Statement refers to a number of responsibilities expected of judges, such as the responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation, and to promote access to the justice system for all persons on an equal basis, regardless of representation.

The panel in Divisional Court concluded that where one spouse is represented by a lawyer and the other is not, a trial judge must balance the issues of fairness, be mindful of both spouses and not allow assistance to a self-represented spouse result in the represented spouse’s rights being overridden.

In the end, the wife’s appeal was granted, the case was sent back for a new trial and the husband was ordered to pay costs of the appeal in the sum of $17,666.