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YOUR QUESTIONS ANSWERED

NOTICE TO READER: The answer to each question below is a brief summary for informational purposes only and is only applicable in the Province of Ontario. It is not meant to be legal advice. If you require information or advice as it relates to your individual circumstances you are advised to consult with your own lawyer or retain the legal services of Steven Benmor.

Court Procedure

Do I need a lawyer to go to court?

No. A spouse may appear in court without a lawyer. However, it is not recommended. 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. 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. It is critical to obtain legal advice and representation by a family lawyer when proceeding to court. If, however, a spouse decides not to retain a family lawyer, he or she will then be responsible for preparing, swearing, serving and filing all of the appropriate court documents. The spouse will also be required to make oral submissions to the judge.

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 a motion?

A motion is a court procedure that is used to obtain certain types of orders from a judge. You can bring a motion to ask for an order to resolve an issue on a temporary basis or to change an order that has already been made. For example, a motion may be brought for an order determining support payments or visitation rights on a temporary basis until these issues are settled between the spouses or finally determined by a judge at a trial.

When can you bring a motion?

Under the Family Law Rules (Ontario), you can bring a motion only after you attend a case conference. However, there are some exceptions to this general rule. A motion can be brought before a case conference in situations of hardship or urgency (for example, if you need to apply for a restraining order because of immediate danger to the health and safety of you or your children), or if you need directions from a judge (for example, you may need to ask for a Judge's permission to file an answer late if you have missed the deadline for filing).

If you bring a motion before a case conference, the judge will first decide whether your case fits within one of these exceptions. If the judge decides that it does not, your motion will only be heard after a case conference and you may be responsible for paying the other party's costs.

Who can bring a motion?

Anyone who is a party to a case or anyone (other than a child) who is affected by the case, can bring a motion. The person who brings the motion is the moving party. The person who responds to the motion is the responding party.

How do you bring a motion?

In order to bring a motion, you must prepare, serve the other spouse with, and file in court, a notice of motion and sworn affidavit. The moving party must get a date for the motion from the court office and include this date in the notice of motion so that the other party is notified of the hearing date. After the other party is served with the notice of motion and sworn affidavit, a sworn affidavit of service must be filed in court to establish that the other party was served with the notice of motion and sworn affidavit. In most cases, you must attend before a judge to argue the motion. If the motion deals with financial issues such as support, then you must also prepare, serve and file a sworn financial statement. After all your documents are prepared, served and filed, the other party has the right to also serve and file a responding affidavit.

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:

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.

What Is "Unbundled Legal Services?"

This is another way of saying that a client can hire a lawyer to handle part - but not all - of a case.  It is also called a 'limited scope retainer'.

These terms have been around for many years.  Recently, however, the Law Society of Upper Canada decided to rewrite its Rules of Professional Conduct to formally sanction this sort of practice. 

The Law Society of Upper Canada states that unbundling is the concept of dividing a matter up into discrete parts and having a lawyer (or paralegal) provide limited legal services or representation.  In this scenario, if a lawyer were to provide partial legal services, then the client otherwise represents herself for the rest of the case.

The Law Society of Upper Canada created a working group to consult with legal organizations and institutions to finalize these changes.

It was through this consultation that I became concerned with the sanctioning of 'unbundled legal services'. 

In Family law matters, unbundling can result in a spouse attending for a preliminary consultation with a lawyer and then forming the impression that she can represent herself throughout a court proceeding (such as one involving custody, access and support).  Unbundling can also permit a spouse to have a lawyer draft the court documents in that spouse's own name (a.k.a. ghost-writing) and then use them in court, without legal representation and without even understanding the contents of those documents and how they are used in court.  Unbundling can involve spouses negotiating final terms of a Separation Agreement without legal advice, but then having lawyers provide summary legal advice at the time of signing the agreement, without having a holistic grasp of the spouse's legal interests.  Unbundling can mean that a lawyer advises a spouse on her Family law rights, but then that spouse drafts a Marriage Contract or Separation Agreement on her own using a standard form downloaded from the internet, or purchased at a stationary store.  Another example is where a spouse retains a lawyer to argue a narrow point in court, but not to provide legal advice or guidance in resolving the entire case. 

In my opinion, unbundling is a dangerous exercise and should be severely limited, if not prohibited, in Family law matters - not to protect lawyers' fees, but to ensure that judges are able to dispense justice (not education and advice to self-represented spouses), to permit opposing lawyers to forcefully argue their client's case (not assist self-represented opposing spouses) and, most importantly, to make sure that spouses are properly and comprehensively represented by lawyers regarding their Family law rights and remedies.

The economics (i.e. high cost) of lawyers and litigation is a subject that can (and should) be studied, addressed and resolved through law reform and improvements to the legal process.  I think that it is a mistake to invite spouses to serve as their own lawyers and to believe that the a la carte purchase of legal services is a suitable solution.

Interestingly, in the 1993 case of Logan v. Logan, Mr. Justice Wright was asked to decide whether the lawyer that appeared before him was a 'solicitor of record'.  In that case, the client argued in court that the lawyer was retained on an 'unbundled' basis and was not a 'solicitor of record'.

The judge contemplated the difference between the lawyer's responsibility for one narrow part of the case versus the lawyer's responsibility to the client, to the court, to the other lawyer and to the administration of justice; he considered whether that lawyer was the client's 'solicitor of record'.

The judge wrote:

"my initial reaction was that a lawyer could not both appear and yet avoid the duties and obligations of a solicitor of record. Having reviewed the matter, however, I have concluded that my original impression was mistaken. The rules are quite clear. A person may represent himself or he may be represented by a solicitor. The solicitor then goes 'on the record' and certain obligations flow therefrom. The lawyer acting for the father in this case submits that he was not retained or acting in his capacity as a solicitor, but in his capacity as barrister or counsel. Solicitors may retain counsel to represent a client. That is their traditional function. So too may a person who is representing himself retain counsel to put forward particular aspects of his case to the court. This appearance by counsel does not impose upon counsel the obligations of a solicitor of record. The barrister is free of those obligations and duties."  

And there you go.  In 1993, Justice Wright decided that 'unbundling of legal services' was permissible and appropriate and, in that case, such lawyers have no (or limited) duty to the client, court, other lawyer or administration of justice.

Time will tell what the Law Society of Upper Canada decides to do in this respect.

What is the 'greying' of the bar and why is it relevant?"

In Ontario, 41% of practicing lawyers are over 50 years old. 34% of lawyers are sole practitioners. 29% of lawyers are in firms of 2 to 10 lawyers.

The aging of the bar in smaller centres, concurrent with the shortage of articling students and new lawyers choosing to establish their practices in smaller communities, is a growing problem facing the legal profession. Retiring lawyers are not being replaced as required by their communities. Legal services are becoming more scarce. Senior counsel are unable to engage in succession planning. Young lawyers are losing valuable mentorship opportunities.

What many articling students and new lawyers are drawn to are the salaries of large firms in the major centres. This is especially relevant because of the sharp rise in the cost of a law degree and the associated debt load new lawyers carry following graduation. What is often overlooked is the longer term benefits offered by the smaller practices in the smaller centres. Some of the benefits are mentorship, partnership, financial independence, job security, work/life balance, lower cost of living and real estate, better quality of living for young families, reduced transportation, joining a smaller bar and enjoying the collegiality of a smaller group of lawyers and a smaller population.

More importantly, the threat to sole practitioners of a sudden disability or death creates significant risk to both the public and to the professional. Such an unforeseen event can strip the sole practitioner of the firm's equity and receivables, and may even force an involuntary sale or shut-down of the practice.

All this poses a need and an opportunity for the Law Society to craft a program for law students, articling students and new lawyers. The Law Society can, and should, create programs to promote employment opportunities with smaller firms in smaller communities. This would also assist senior lawyers with financial, succession and retirement planning to ultimately realize the value of the practice that, in many cases, took years to build.

Both senior and the junior lawyers need the support, guidance and infrastructure of the Law Society to recruit new lawyers to the smaller communities. These new lawyers need to be groomed to assume leadership positions in the practice, in the local bar and in the community. In addition, such lawyers can assist senior lawyers with succession and exit plans.

In April 2011, Ontario lawyers are electing their governing body, called Benchers. I am running as a Bencher candidate in this election and, if elected, I intend to pursue measures to address the problem posed by the greying of the bar.

For more information on the Bencher election and my candidacy, please visit www.BenmorForBencher.com.

What does Ontario’s Chief Justice Warren Winkler think about Ontario’s Family Court System?

Family-law reform “has been studied to death. We have to sit down with a white piece of paper and redesign the system. It has to be made cheaper, faster and simpler, without convoluted rules.”

The Globe & Mail’s Kirk Makin reported on March 25, 2011 that the Chief Justice recently made this comment and also stated:

“Everywhere I go, there is a constant refrain. The Family law system is broken and it’s too expensive…my strategy has been to get a discussion going. I’m the bully pulpit. But I get frustrated when not very much happens.”

He believes that each case should be triaged to decide which track is best suited for that family, with the same judge shepherding it along.

“We have to make the system faster, less technical and not have these convoluted rules”, the Chief Justice stated.

The type of change endorsed by Chief Justice Warren Winkler will involve the input and collaboration of many groups – the courts, government, legal aid, and yes, the legal profession.

I believe that the Law Society should be at the centre of this issue - studying, researching, partnering and solving the problem.

I am running as a candidate in this Bencher election because I hope to be instrumental in repairing Ontario’s Family Court System.

www.BenmorForBencher.com

Who needs Hollywood when we have Family Court ?

When Ontario’s Superior Court of Justice Quinn was assigned the case of Larry Bruni v. Catherine Bruni in 2010, he was not looking for entertainment.  What he found was a family in crisis with parents feuding over their children.  

After Larry and Catherine were married, they had two children, 13 year old Taylor and 11 year old Brandon.  Larry’s close friend was Sam.  They worked together.  Larry was the best man at Sam’s wedding.  A few years later, Sam separated from his wife.  This was around the same time that Larry and Catherine also separated.  Sam and Catherine are now together and live very close to Larry and his new partner.

After Mr. Justice Quinn presided over this trial (where neither parent was represented by a lawyer), he sat down to write his judgment.

In his opening paragraph, he writes:

“Paging Dr. Freud. Paging Dr. Freud.”

And then, he continues:

“This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention.  Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment.”

The following are some quotations of Mr. Justice Quinn in the judgment:

“In the midst of this social stew, perhaps it is not surprising that Larry and Catherine are having problems, serious problems, regarding the custody of, and access to, their children.  The source of the difficulties is hatred: a hardened, harmful, high-octane hatred.  Larry and Catherine hate each other, as do Larry and Sam.  This hatred has raged unabated since the date of separation. Consequently, the likelihood of an amicable resolution is laughable (hatred devours reason) and a satisfactory legal solution is impossible (hatred has no legal remedy).”

“At one point in the trial, I asked Catherine: “If you could push a button and make Larry disappear from the face of the earth, would you push it ?
Her ‘I just won a lottery’ smile implied the answer that I expected.”

“It is likely that, in the period 2004 to 2006, Larry was having one or more extramarital affairs.  Interestingly, Larry’s father was married 5 times, in addition to going through several relationships.  Perhaps there is an infidelity gene.”
“Larry gave evidence that, less than one month later, Catherine “tried to run me over with her van.”  This is always a telltale sign that a husband and wife are drifting apart.”

“On November 21, 2006, Catherine demanded $400 from Larry or her brother was “going to get the Hells Angels after me.”  The courtroom energy level in a custody/access dispute spikes quickly when there is evidence that one of the parents has a Hells Angels branch in her family tree.  Certainly, my posture improved.  Catherine’s niece is engaged to a member of the Hells Angels.  I take judicial notice of the fact that the Hells Angels Motorcycle Club is a criminal organization (and of the fact that the niece has made a poor choice).”

“On August 13, 2007, Catherine’s niece (Donna), telephoned Larry “and told me I will get a bullet in my head if I don’t sign the adoption papers.  She called back later and told me I’m as good as dead.”  She called a third time “to tell me her father and uncles are coming to kill me.”  Donna is a devotee of the literary device known as “repetition for emphasis.”  I do not know whether Donna is the niece who is engaged to the Hells Angels member.  If she is, they may be more compatible than I initially surmised.”

“Larry, who regularly drives by the residence of Sam and Catherine, often shoots the finger. A finger is worth a thousand words and, therefore, is particularly useful should one have a vocabulary of less than a thousand words.”

“On another occasion in July of 2009, Larry said to Taylor: ‘You put shit in this hand and shit in this hand, smack it together, what do you get ? Taylor.’  I gather that this is Larry’s version of the Big Bang Theory.”

“The parental alienation in this case reflects an intent by Catherine to destroy the relationship between Taylor and Larry; it is shocking conduct.  It also amounts to a hideous repudiation of the relationship between Catherine and Larry as co-parents of Taylor.  The harm here probably is irreparable.”

In his final expression of exasperation, Mr. Justice Quinn writes:

“It is touching how a trial judge can retain his naivety even after 15 years on the bench.”

Should spouses who represent themselves in Family Court be given special treatment by judges ?

This is a dilemma in Family Courts all over the world.  Here in Ontario, Family Court judges are faced with cases everyday where the spouses are representing themselves.  Combine that with the high stakes, high emotions and a winner-loser mentality and it is understandable that Family Court judges are often criticized and even appealed by angry litigants.

This very issue was considered by a 3 judge panel of the Ontario Divisional Court in the 2009 case of Cicciarella v. Cicciarella, 2009 CanLII 34988.

Karen Cicciarella appealed the judgment of Mr. Justice Hambly dealing with the issue of property division.  The husband had been represented by a lawyer throughout the lengthy and acrimonious matrimonial proceedings but, 3 weeks before trial, he discharged his lawyer and represented himself at trial.  The wife was represented by two lawyers at trial.

The wife alleged that the trial judge interfered with the trial process in an unreasonable and unfair manner. 

The Ontario Divisional Court considered this appeal and indeed granted the wife a new trial by another judge.  However, in so doing, the appeal court carefully examined the epidemic of self-represented litigants and the role of Family Court judges.

Quoting from other decisions, the appeal judges wrote:

The role of a trial judge is often very demanding owing not only to the inherent nature of the case, but also to the particular conduct of the litigants. 

A trial judge must exercise restraint and maintain impartiality so as to act within the scope of his or her neutral role.

The increase in the number of litigants who appear without legal representation can pose special challenges for busy trial judges.

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. It is generally recognized that the court should provide some assistance to an unrepresented litigant, as occurred in Barrett.  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.  How to balance the sometimes competing imperatives of helping a litigant who is in need of assistance while maintaining impartiality is a recurring dilemma for both trial and appellate courts.

The judge cannot descend into the arena from the bench and advocate for the self-represented litigant.

Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer.  Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics.  It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case.  In doing so, the trial judge must, of course, respect the rights of the other party.

The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party.

Partly because of the increase in the number of self-represented litigants in Canadian courts…, in 2006 the Canadian Judicial Council adopted a “Statement of Principles on Self-represented Litigants and Accused Persons.”

This Statement of Principles is meant to be advisory in nature.  It is not a code of conduct. Its aim is to provide guidance to judges, court administrators, members of the Bar, legal aid organizations and government funding agencies in relation to self-represented persons.

The advisory 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 Principles refer to an expectation that judges will do whatever is possible to provide a fair and impartial process and to prevent an unfair disadvantage to self-represented persons. It goes without saying that in a contested family law case, in preventing an unfair disadvantage to self-represented persons, the judge must also ensure that the legally-represented litigant is not thereby disadvantaged by the judge’s conduct.

With respect to the judge’s responsibility to promote equal access, the Principles also address behaviour in which a judge may wish to engage without offending the requirements of judicial neutrality and impartiality.

When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:

  1. explain the process;
  2. inquire whether both parties understand the process and procedure;
  3. make referrals to agencies able to assist the litigant in the preparation of the case;
  4. provide information about the law and evidentiary requirements;
  5. modify the traditional order of taking evidence; and
  6. question witnesses.

The Principles also address the responsibilities of the participants in the justice system, recognizing that “all participants are accountable for understanding and fulfilling their roles in achieving the goals of equal access to justice, including procedural fairness.”  

For judges, this translates into, among other things,

  1. A responsibility to inquire whether self-represented persons are aware of their procedural options and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.
  2. In appropriate circumstances, judges should consider providing self represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the courts.

    For self-represented persons, this translates into, among other things, an expectation that they will (1) familiarize themselves with the relevant legal practices and procedures pertaining to their case and (2) prepare their own case.

In conclusion, in a trial where one party is represented by counsel and the other is not, a trial judge must balance the issues of fairness and be mindful of both parties. In doing so, a trial judge should exercise restraint and should maintain impartiality. While a trial judge may wish to exercise some leeway in procedural matters to the self-represented litigant, he or she must never become an advocate for the self-represented litigant. Finally, a trial judge must not allow assistance to a self-represented litigant to result in the represented side’s rights being overridden.

Is a Family court judge permitted to direct the spouses to privately settle a case where one spouse is representing himself ?

In the case of Glaspy v. Glaspy [2011] N.B.J. No. 405, the judge did just that. However, in a decision released on November 17, 2011, a 3 judge appeal panel of the New Brunswick Court of Appeal subsequently determined that this was not appropriate.

In that case, the judge adjourned a hearing and directed the husband (who was representing himself) and the wife’s lawyer to another room in the courthouse with instructions to attempt to reach a settlement.  In the meantime, the judge proceeded to hear other cases.  About 4 hours later, they emerged from their meeting with terms of settlement that they wished to place on the court record.  The terms of settlement increased the total monthly support to be paid by the husband from $1,100 to $2,642 per month.  In addition, the husband undertook to pay all of the child’s university tuition and book expenses.

Later, the husband appealed this order and argued that he felt pressured to enter into the settlement.

The appellate court agreed and concluded that:

“Settlement Conferences are to be conducted under the direction of a judge in a fair manner.  While that direction should not be interpreted to require the judge’s presence with the parties during all of their discussions, it certainly does not permit the judge to adjourn a hearing, task an unrepresented litigant to meet with experienced legal counsel, proceed to conduct other cases and then simply endorse that which the parties subsequently agree upon.  A Settlement Conference authorized by the Rules of Court contemplates that a judge will be fully apprised of the position of both parties, assist the parties in understanding the issues, ask questions to explore potential common ground, in some cases provide his or her opinion on the potential outcome if the matter proceeds to a hearing and, generally, direct the discussions in a fair and impartial manner.  Obviously, Settlement Conference judges must be exceedingly vigilant where one party is unrepresented and the other has the benefit of legal counsel.”

In conclusion, the appellate court decided that the judge’s failure to conduct a proper Settlement Conference entitled the husband to a new hearing.  But before doing so, the appellate court cautioned that “feeling pressured to reach an agreement cannot, in and of itself, constitute a ground of appeal. No doubt, many litigants who resolve matters by out-of-court settlements feel some degree of pressure to do so by their counsel, counsel opposite and, on occasion, by judges.”

Can a court order made on consent be appealed ?

Every day in courts all over Ontario, family law lawyers are negotiating agreements for clients by email, by telephone, by fax and even in the hallways of court.  Some of these agreements are then turned into court orders, signed by judges.  At times, these agreements are made by spouses on their own, without lawyers, or with only one spouse represented by a lawyer.

Judges are largely unwilling to later overturn a court order that the parties negotiated, especially if it was based on a complete understanding of their rights and based on full financial disclosure.  The thinking is that spouses are at liberty to consider their options and then deliberately make sacrifices and concessions to achieve a final settlement.  Final settlements are intended to be exactly that, final.  Spouses are rarely afforded “buyer’s remorse” or a cooling-off period during which they can withdraw from the agreement.

The entire body of statutory law, case-law and social science research in family law is geared towards bringing families to a final and forever settlement.  Thus, appealing a final court order, one that is made on consent, seems to be antithetical to Family law.

Having said that, section 133(a) of the Courts of Justice Act provides that a court order made on consent may be appealed with leave (i.e. permission) of a judge.

Donald Brown writes in his loose-leaf publication Civil Appeals (Toronto: Canvasback Publishing, 2009):

The underlying rationale for requiring leave would appear to be that a consent order is a contract of the most formal nature, made in the context of adversarial judicial proceedings. Accordingly, apart from orders dealing with the custody of a child (such as a consent adoption order), the same principles applicable to contracts are applied, and leave to appeal is unlikely to be granted unless the consent judgment was obtained by fraud, duress, mistake, or some other vitiating circumstance.

In the recent case of Ruffudeen-Coutts v. Coutts [2012] O.J. No. 400, the Ontario Court of Appeal dealt with an appeal from a judgment obtained on consent. The judgment dealt with custody and access to a 2 year old child. The mother sought leave to appeal a judgment granting the parties’ joint custody and ordering the parties to share primary residence.  The mother argued that she was under duress by comments made to her by the presiding judge.

After bringing an emergency motion, the mother obtained a temporary consent order providing her with primary care of the child and providing the father supervised access. The mother had provided affidavit evidence that she had taken 14 months off from her job to be the child’s sole caregiver and that the father had little interest in the child.  She claimed that the father was abusive to her and that she feared for the safety of herself and the child. The father denied the allegations and claimed that the mother had concocted them to keep him from the child.

At the father's motion for unsupervised access to the child, the judge made it clear that he was displeased with the mother’s conduct of the litigation, her allegations against the father and her emergency motion at Christmas time. He found that she intended to alienate the child from the father.

Prior to a break, the judge indicated that he was considering changing the child's primary residence to be with the father. After the break, the parties indicated that they needed more time to resolve the issues between them. The judge made it clear that the parties needed to reach a resolution before the close of court that day. The parties went out to draft a consent order and returned with an agreement providing for shared custody and shared primary residence.

Later, on appeal, the mother claimed that she entered into the agreement under duress.  The Court of Appeal dismissed the mother’s appeal and held that the mother's claim of duress failed. It was found that the mother had been represented by counsel and there was no suggestion that counsel had rendered ineffective advice or assistance. Ultimately, the court felt that the judge gave due consideration to the child’s best interests in rendering the judgment and refused to grant the mother leave.

In closing, be careful what you agree to. While there is a mechanism to appeal consent orders, it is not an automatic right, and success is not guaranteed.

Is a spouse representing himself entitled to an order for costs ?

This simple answer is “yes”; in fact, that was the law since 1999, when the Ontario Court of Appeal in Fong et al v. Chan et al [1999] O.J. No. 4600 established that a self-represented litigant is entitled to recover costs, including a counsel fee, at his or her own trial.  However, more recently, the case of Jahn-Cartwright v. Cartwright [2010] O.J. No. 3307 elaborated on how these costs are quantified.

In Jahn-Cartwright v. Cartwright, the spouses had three children, with the youngest child attending college.  They separated after 13 years of marriage.  After separation, they signed a Separation Agreement which required the father to pay child support and to contribute to the child’s special expenses.  The father later applied to court to terminate his support obligations. The mother opposed the court application and asked the judge to order the father to pay his share of the youngest child's college expenses.

In court, the mother did not use a lawyer, but instead represented herself, and was ultimately successful at court. She asked the judge to order that the father pay her costs of approximately $20,000. The father argued that costs should be no more than $500. 

In setting the amount of costs, the court attempted to balance indemnification of the mother with preserving the father’s access to justice.  The court stated that, on the one hand, it should not deny him the right to seek a remedy from the court by imposing an overly onerous financial burden on him.  On the other hand, the mother did lose time away from work and incurred some expenses to defend the father’s court case and to get the father to pay his share of their child’s college expenses.

Adding to the challenge in this case was the fact that the husband was represented by a lawyer while the wife was not.

In the end, the court ruled in favour of the mother and awarded her approximately $10,000 in costs.  The court accepted the rate of $200 per hour that she claimed – approximately two-thirds of the rate of the father's lawyer. The court determined that this was a reasonable rate as the mother prepared documents of a professional caliber and displayed the standard of civility expected of lawyers.

Parenting Coordinators: The newest in ADR for separated parents ?

A Parenting Coordinator (‘PC’) helps separated parents resolve parenting disagreements.  PC’s are usually social workers and psychologists, although there are a growing number of lawyers now working as PC’s.  PC’s receive their authority from a Parenting Plan, Separation Agreement, Court Order or Arbitral Award. That is, the types of disputes that PC’s resolve relate to the implementation of a parenting schedule - not the creation of such a schedule.  That is why section 59.7(2) of the Family Law Act refers to this service as a ‘secondary arbitration’. By definition, a secondary arbitration “means a family arbitration that is conducted in accordance with a separation agreement, a court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award.”

Before arbitration is invoked, PC’s use a variety of tools to help parents solve their disagreements ranging from parent education, to coaching, to mediation. Only if the parents still cannot agree upon a solution, do PC’s resort to arbitration.  That is, PC’s have the power to arbitrate parenting disputes, but usually after education and mediation have failed.  The idea is that the PC attempts to enable the parents to problem-solve and develop the skills to better communicate and arrive at mutual decisions regarding their children.  However, if such efforts have been exhausted, the PC renders an arbitral decision, which must be followed by the parents, as if ordered by a judge.

The implementation of Parenting Coordination varies among jurisdictions.  In Ontario, a judge cannot order parties to use a Parenting Coordinator, as that would constitute a delegation of authority. The consent of both parties is required.

In 2012, the Ontario Court of Justice in Sehota v. Sehota [2012] O.J. No. 835, took judicial notice of PC’s and specifically the 2005 Guidelines for Parenting Coordination, which were produced by the Association of Family and Conciliation Courts.

The court stated:

The Guidelines suggest that the Parenting Coordinator has considerable authority, albeit about only minor issues.  A list of the types of issues that might be addressed by a Parenting Coordinator is as follows:

  1. Minor changes or clarification of parenting time/access schedules or conditions including vacation, holidays and temporary variation from the existing parenting plan;
  2. Transitions/exchanges of the children including date, time, place, means of transpiration and transporter;
  3. Health care management including medical, dental, orthodontic, and vision care;
  4. Child-rearing issues;
  5. Psychotherapy or other mental health care including substance abuse assessment or counseling for the children;
  6. Psychological testing or other assessment of the children and parents;
  7. Education or daycare including school choice, tutoring, summer school, participation in special education testing and programs or other major educational decisions;
  8. Enrichment and extra-curricular activities including camps and jobs;
  9. Religious observances and education;
  10. Children’s travel and passport arrangements;
  11. Clothing, equipment, and personal possessions of the children;
  12. Communication between the parents about the children including telephone, fax, e-mail, notes in backpacks, etc.;
  13. Communication by a parent with the children including telephone, call phone, pager, fax, and email when they are not in that parent’s care;
  14. Alteration of appearance of the children haircuts, tattoos, ear and body piercing;
  15. Role of and contact with significant others and extended families;
  16. Substance abuse assessment or testing for either or both parents or a child, including access to results; and
  17. Parenting classes for either or both parents.

Parenting Coordinators have become a critical component of matrimonial law, post-separation family counseling and dispute resolution. Family court judges value the work of such professionals for their help in easing many of the difficulties parents face, in a manner that protects the interests of children.
PC’s help parents put their children’s interests first, help them understand how conflict hurts children and teach them how to communicate and cooperate so as to achieve the very best outcomes for children of divorce.

What’s new in family law in BC ?

On November 24, 2011, BC’s new Family Law Act was introduced.  It came into effect on March 18, 2013.  This act has wide-reaching effects on family law in the province.

Among the many changes, the new act allows judges to make a number of conduct orders. Conduct orders are court orders intended to help manage the court process, manage the people involved and encourage dispute settlement.

These orders can:
  • order a spouse to attend counseling or out-of-court dispute resolution sessions such as mediation;
  • order a spouse to follow an existing court order;
  • restrict communication or contact between spouses; or
  • order a spouse to maintain the payments on the family home.
Conduct orders also include case management orders which can:
  • cancel or dismiss all or part of a claim;
  • instruct one party not to make any more court applications without the court’s permission; or
  • direct any future applications for orders to return to the same judge.
Except for protection orders, which are enforced by the police, all orders can be enforced by the courts in various ways, such as:
  • posting a bond to guarantee compliance with the order;
  • paying a fine of up to $5,000 for not following the order; or
  • sending the spouse to jail for up to 30 days for not following the order.

BC has been the most innovative province to improve court processes and remedies available to separating spouses and children. Time will tell what impact these improvements will have on families.

Transcripts from court proceedings: no more waiting

The Ministry of the Attorney General, Court Reporting Services has established a new court transcription model that will take effect on June 9, 2014.

By Ontario Regulation 587/91, the new regulatory amendments to the Administration of Justice Act change the process for obtaining transcripts. 

According to the Ministry, this new model and fee schedule will better reflect industry standards and address current technology and formats, plus appropriately compensate court reporters.  The most critical change is the introduction of different delivery options such as same day or expedited service. 

Previously, the Ministry conducted a review of its system. Court users identified various concerns including the long wait times for the production of transcripts and the delays caused to court proceedings. Additionally, the court transcript fee schedule had not been revised in 22 years. Under the new model, where a transcript is not required, authorized parties have the option of purchasing a copy of the digital court voice recording. Same day transcripts will cost $8 per page. Expedited (5 day) transcripts will cost $6 per page. Regular orders will cost $4.30 per page. While there is an increase to the per page fee for an original transcript, parties would be able to obtain an electronic copy of the typed transcript at no extra charge.

This new system for ordering transcripts will enhance and modernize court reporting and transcript production in Ontario.

For more information, you may contact courtreportingservices@ontario.ca.

Can a judge make a final order at a Case Conference ?

Rule 17 of the Family Law Rules expressly empowers a judge to make an order at a Case Conference.  In addition to this provision, Rule 2 directs judges to actively manage cases and to dispose of cases that do not require a trial.  However, Case Conferences were created as an alternative to contested hearings and to afford the spouses an opportunity to consider self-made settlements guided by judges, as opposed to judge-imposed conclusions.

In A.B. v. N.L.A., CanLii (2013) ONSC 2990, Justice Czutrin stated that “conferences are intended to assist in getting parties to a settlement or to trial readiness and to attempt to avoid motions. Conferences are not intended to be used as venues in which to determine opposed substantive matters on a final basis. They are not meant, and could not have been intended, to prevent a person from having an opportunity to be fairly heard according to the Rules. At conferences, it may often be appropriate to make procedural orders or temporary orders to preserve positions, provide for temporary support (based on sworn financial statements and undisputed facts), ensure necessary disclosure and move the case along. However, seldom (if ever) should a final order be made at a conference when it is opposed and not on consent.”

In that case, the court was faced with an appeal by a father from an order made by a judge at a Case Conference.  In overturning the case under appeal, the court stated “the Family Law Rules enacted in 1999 sought to change the direction of what was seen as a very adversarial family process. The most significant change was the requirement of a Case Conference before evidence could be exchanged by way of affidavits. The goal was to have a judge meet with the parties, prior to the exchange of accusatory affidavits, so that a judge might assist the parties in resolving as many issues as possible prior to any motions being brought, or to avoid motions entirely. This was the birth of the required Case Conference prior to any motions or exchange of affidavit evidence.”

Justice Czutrin quoted Justice Kiteley’s decision in Robinson v. Morrison [2000] O.J. No. 2973 that addresses the appropriateness of a final order made by a Case Conference judge. The concern in Robinson was the lack of procedural fairness afforded to the party who was unaware that a Case Conference could result in an order.  By overturning another lower court ruling, Justice Kiteley stated:

“The Family Rules institutionalize conferences as vehicles for problem resolution. They do not undermine or defeat the rules of natural justice. Before any substantive order is made, a litigant is entitled to notice of the case she must meet, entitled to an opportunity to respond to that case and entitled to an opportunity to be heard. This case was not fairly and fully heard when all of the elements of procedural fairness were not present. The appellant received no notice that an important order such as this would be sought. She knew from the application what case she would have to meet at trial, but she had no notice of what case she would have to meet as to the interim access. Her counsel had an opportunity to make submissions which consisted largely of pointing out the factual differences in the material and resisting the making of an order without notice. Those submissions do not constitute the right to be heard.”

Family Court judges continue to struggle with the right balance between actively managing cases by making orders that can move cases towards a final resolution, while at the same time ensuring procedural fairness.

Has the era of a one-sided expert report ended ?

People enter litigation when they have been unable to resolve their affairs through other less adversarial and inexpensive means, such as negotiations or mediation.  Once litigation commences, the litigants expect a judge to use her wisdom and experience to assist them in settling their matter before trial, or rendering a decision after trial.

In many cases, there are issues that fall beyond the wisdom and experience of a judge.  In these cases, the judge may require an expert opinion.  The valuation of a pension may require an actuary.  The valuation of real estate may require an appraiser.  The valuation of a business may require a Chartered Business Valuator ("CBV").  The determination of a self-employed person's income for support purposes is often not based on his Income Tax Return and may also require an expert opinion from a CBV.  In Family law cases, who has custody of a child and what that child’s residential schedule will be after separation, are other areas for the involvement of an expert, such as a social worker or psychologist with expertise in child development. This is especially needed where there are clinical issues in the family such as mental illness, addictions, domestic violence or relocation.

Historically, a spouse and his lawyer would identify the issues in a case and then determine what evidence was needed to support his claims.  With the issues listed above, it was customary for an expert to be retained to provide an expert opinion to support the position of the spouse at trial.

The Family Law Rules established a protocol for the exchange of expert reports.  Rule 23(23) provides that a "party who wants to call an expert witness at trial shall serve on all other parties a report signed by the expert and containing the information listed in subrule (25)...at least 90 days before the start of the trial." This process afforded the other spouse ample time to consider the expert opinion for the purposes of settlement or trial, or to obtain her own expert report or critique of that report.

On August 17, 2011, Rule 20.1 was introduced dealing explicitly with the expert’s duty to the court.  The Rule states:

20.1(1) It is the duty of every expert who provides evidence in relation to a case under these Rules,
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

Rule 20.1(2) added an extra limitation that would prevent any expert from advocating for a client by stating “In the case of an expert engaged by or on behalf of a party, the duty in subrule (1) prevails over any obligation owed by the expert to that party.”  That is, the expert’s duty is to the court, not the client or lawyer.

Moreover, Rule 20.1(10) requires that every expert report contain the following information:

1. The expert’s name, address and area of expertise;
2. The expert’s qualifications, including his or her employment and educational experiences in his or her area of expertise;
3. The instructions provided to the expert in relation to the proceeding;
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates;
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;
6. The expert’s reasons for his or her opinion, including,
    i. a description of the factual assumptions on which the opinion is based,
    ii. a description of any research conducted by the expert that led him or her to form the opinion; and
    iii. a list of every document relied on by the expert in forming the opinion; and
7. An acknowledgement of expert’s duty (Form 20.1) signed by the expert.

The "Acknowledgement of Expert’s Duty" form that experts are now required to sign states:

I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows:

a. To provide opinion evidence that is fair, objective and non-partisan;
b. To provide opinion evidence that is related only to matters that are within my area of expertise; and
c. To provide such additional assistance as the court may reasonably require, to determine a matter in issue.

I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged.

This created a radical shift to the mandate and role of an expert who testifies at trial. No longer are experts permitted to be "hired guns" selling their expert testimony to lawyers and litigants.  Experts are now required to be objective, even-handed and not in any way influenced by the person who paid them.  Litigants are now faced with circumstances where the expert they retained and paid for could give an opinion that is contrary to their position.  Lawyers are required to explain to their clients that despite the high cost of expert evidence, the expert is entirely independent and could possibly give unfavourable testimony. This shift in the role and function of experts is meant to ensure that the judge adjudicating the issue has accurate, objective and reliable assistance from a professional with the expertise and knowledge that the judge does not possess.  By eliminating the battle of the "hired guns", judges could focus on the issues, the evidence and the arguments, and not need to hear competing expert opinions, relieving judges of having to accept one expert and reject the other or both experts.  This shift also prompted the use of joint experts, or having the two experts "hot tub".  Hot-tubbing refers to a situation where the two experts collectively consider one another's opinion, and the reasons for arriving at such a conclusion, and either eliminate their differences of opinion or identify the different factual assumptions that resulted in the disagreement.

The movement away from a one-sided expert at trial has continued to shift. In the case of Moore v. Getahun [2014] O.J. No. 135, Justice Wilson of the Ontario Superior Court of Justice rendered a decision on January 14, 2014 involving a personal injury case.  In that case, the plaintiff's lawyer reviewed the expert doctor's file and discovered notes of a telephone call that took place between the defendant's lawyer and the doctor. The lawyer reviewed the doctor's draft expert report and suggested changes to it.

Justice Wilson ruled:

"For reasons that I will more fully outline, the purpose of Rule 53.03 [equivalent to Rule 20.1] is to ensure the expert witness' independence and integrity. The expert's primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel's prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable. If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel."

Given these developments, a spouse who retains an expert will need to remain at arm's length, limit his input to the expert, provide the expert with a bilateral explanation of the case and source information, and avoid any one-sided discussions with the expert. Moreover, any communication with the expert must be fully transparent to the other party.
 
It would seem that the era of the one-sided expert report has indeed ended.

 

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