Message from the Past Chair
By Anu Osborne, Smith Osborne LLP, Winnipeg
An update on Section activities and in-person meetings during the 2010 and 2011 year, and a look ahead to upcoming initiatives, including participation in the assessment of the Spousal Support Advisory Guidelines.
Family mediation: Getting started in an emerging market
By Deloras O'Neill, Deloras O'Neill Mediation Services, Inc., Moncton
I read with interest the excellent article in the April issue of The Family Way by Eugene Raponi, Q.C., outlining the challenges and successes of distance mediation. I was struck by the innovative and ambitious nature of the pilot project now underway.
Best-selling book on the challenges of the family court system leads to online talk show
By the Honourable Justice Harvey Brownstone, Toronto
Judges are not just adjudicators, but public educators. Every day, in family courts throughout North America, family court judges convey information about the law and share insights with the litigants who appear before them.
Move from law to action and hear the child
By Suzanne Williams, Lawyer, Victoria
Never has the law been clearer that we must hear from children when their best interests are determined. This topic has been addressed with increasing frequency at conferences and in publications in recent years. Yet, more work is required to move this concept from the pages of our laws to daily practice in family justice matters.
Public Commission on Legal Aid – building on Foundations for Change
By Stephen McPhee, CBA-BC Past President
This past year has seen a tremendous increase in the energy devoted to justice issues with a particular interest in legal aid. With the Public Commission on Legal Aid we witnessed a groundswell of interest – both in the justice system and in the public and media – in legal aid and the impact it has on the public in British Columbia.
“Best interests of the child”: An update
By Gaylene Schellenberg, Lawyer, CBA Legislation and Law Reform
The National Family Law Section has taken on the challenge of communicating to Members of Parliament, and members of the public, the importance of retaining judicial discretion as to what is in the “best interests of the child” as the predominant consideration in custody and access determinations.
B.C. Branch adopts best practices for family law
On June 18, 2011, CBA-BC unanimously passed a resolution adopting the Best Practise Guidelines for Lawyers Practising Family Law and approving the formation of a permanent Bench/Bar Committee for family law. For more on this, read the article by David Dundee  which appeared in the August issue of BC BarTalk.
Message from the Past Chair
By Anu Osborne
As outgoing Chair of the National Family Law Section, I would like to provide our Section members with an update of the Section’s activities during the 2010-2011 year. The Section has focused on a value added approach for our members and for the public.
The National Family Law Section Executive had two in-person meetings. The Executive is comprised of representatives from each province and/or territory and six officers: Chair; Vice-Chair; Treasurer; Secretary; Executive Member; and Past Chair.
The first meeting was held in the Fall of 2010 in conjunction with a meeting with the Department of Justice. The Section continues to develop its relationship with the Department of Justice. The Section wishes to take a proactive approach in dialogues with the Department of Justice regarding issues and policies relevant to family practice. The Section is currently developing its agenda for the Fall meeting with the Department of Justice, on November 4th. Any suggestions you might have would be welcome.
The second meeting was held in Whitehorse, Yukon and Skagway, Alaska in the Spring of 2011.
The Yukon meeting consisted of two educational events, developed and offered by the Executive:
- a free Public Education Session. Executive members were avialable to offer information about the main areas of family law, including mobility, family violence, parenting after separation, matrimonial property on reserves, access to family justice, services and information, social issues such as FASD; and
- a continuing legal education program for the members of the bar and judiciary in Yukon. The topics covered included, contempt of court, domestic violence, tort claims and family law, incapacity of a client, on-line resources for supporting children and parents after separation, and best practices and strategies.
The continuing legal education session was very well attended and received.
Several activities have been planned for the upcoming year which will include: participating in a survey and assessment of the Spousal Support Advisory Guidelines requested by the Department of Justice and on-line CLES.
We also have a number of committees, which are active in areas of Collaborative Law, Legislative Law Reform, Child Participation/Interviews, Best Interests of Children and Status of the Child. The Section intends to work closely with the ADR section in addressing developing issues in Collaborative practice.
The Section also produces a newsletter, The Family Way, to update members regarding developments in the law in the past year. It is published electronically, twice a year, in April and October.
The Section plans to continue to use its fall executive meeting to develop a relationship with the Department of Justice and to use its spring meeting as a forum to reach out to the public and provide continuing legal education in smaller communities. The Section also hopes to raise the profile of the CBA in the profession and the community by continuing to proactively assist in the areas of law reform and practice issues affecting the public and members of the legal profession respectively.
The Section would like to extend its gratitude to all the CBA staff who have tirelessly assisted the Section Executive, and in particular, Jennifer Lalonde, Gaylene Schellenberg and Holly Doerksen.
Anu Osborne was Chair of the National Family Law Section from 2010-2011. She practises family law at Smith Osborne LLP in Winnipeg.
Family mediation: Getting started in an emerging market
By Deloras O'Neill
I read with interest the excellent article in the April issue of The Family Way by Eugene Raponi, Q.C., outlining the challenges and successes of “distance mediation.” I was struck by the innovative and ambitious nature of the work now underway in British Columbia. The pilot project is already showing signs of measurable success affording quality dispute resolution alternatives to willing participants regardless of geography. As I digested the implications of service provision to remote areas, I was reminded of the reality that even in far more centralized locations, professional family mediation may not be readily available as a viable process option, particularly in the private-practice realm.
A few years ago - after 20 years of practising mainly family law and mostly in litigation - I pondered a career change that would allow me to apply my hard earned skills in a non-adversarial setting. I was particularly interested in working directly with parties genuinely motivated to resolve all manner of family law disputes, regardless of the level of conflict or, with some caution, the complexity of issues. At the time, as now, I lived and worked in the greater Moncton area of New Brunswick, with a population of about 125,000. It is best described as a medium-sized city relative to this part of the country. The city has experienced a great deal of growth in the last decade or so and is a busy, thriving regional centre boasting a skilled work force.
In tandem with the growth of the community, the Family Division of the Court of Queen's Bench in Moncton had become so busy that waiting times for court dates were unacceptably protracted. Further, it was not unusual for clients seeking representation to find themselves on waiting lists to retain the services of experienced practitioners. Collaborative family law emerged in this area around 2004, which provided an additional process option. However, as I began to seriously contemplate a career change, I was struck by the near absence of lawyers offering professional family mediation. Some service was available through the social arm of the court; however, these services were limited and also subject to long waiting times.
Against this backdrop, the motivation to switch gears professionally was not difficult to summon. However, the challenges that come with developing a professional mediation service as a lawyer in a relatively untapped market were significant. In my case, the challenges began with re-education and training. Although little regulation applies, the value of intense and focused conflict resolution training cannot be overstated. For example, for a long time advocate, becoming comfortable with concepts such as neutrality and impartiality – simple by definition – will take time and effort to crystallize and apply. Fully understanding interest-based problem solving provides not only essential skills but a reliable process for working directly with parties mired in conflict.
By the time I had completed over 210 hours of interest-based training, I was confident that my knowledge base was finally sufficient to begin offering services. At that stage, the focus shifted to more pragmatic or practice design considerations. This was a large component of my practice development, and I would like to offer a few thoughts on areas that I believe are essential in getting started.
Formalizing the client relationship
A well-crafted “agreement to participate in mediation” is an invaluable resource. It is the mediator's opportunity to establish the parameters of the professional relationship and confirm the client's understanding of crucial elements, such as:
- the role of the mediator as distinguished from legal adviser
- the meaning of neutrality
- confidentiality in and out of session/without prejudice negotiation
- voluntariness and terminating the process
- good faith requirements and disclosure
- independent legal ladvice requirement
- fees and payment for services
Managing client expectations
I found it very helpful to spend some time thinking about why clients choose mediation. For many, the choice is based on a perceived cost advantage - so be clear. Charge the hourly rate you would as a lawyer and split the total between them. Avoid flat rate offers. Completion may take several sessions and this is difficult to predict at the start. Promote your service as cost efficient but not cheap. Many clients value full service, including a draft “separation agreement” as part of the process. Provided the ILA component is well understood and documented, agree to draft the agreement upon conclusion. Many would-be clients are attracted to mediation because of the privacy element. Therefore consider how your work environment meets those expectations. Finally, be prepared to allow flexibility in terms of timing of meetings and sessions. Many potential clients like the fact that they will not be at the mercy of court dockets and busy litigation schedules.
Managing lawyers' expectations
Your clients may choose to (and may be required to) receive and process legal advice at various points throughout the process. Ultimately, the requirement for ILA, except in the simplest case of child support or access variation is mandatory. Be prepared to communicate with the lawyers in a meaningful way on any aspect of the agreement. Provide a professional, thorough document summarizing the agreement or draft contract that your colleagues will easily work with. Most importantly, ensure a complete and accurate record is provided to the lawyers to demonstrate that the requirement for full disclosure of all information relevant to any issue in the mediation has been met.
There are many additional lessons to be learned, old habits to be broken, mistakes to be made and challenges to meet as one moves to an all ADR practice in a market dominated by “traditional” dispute resolution options such as litigation and rights-based negotiation. Overall, for me, the benefits have far outweighed the negatives.
Deloras O'Neill is a certified mediator and collaborative family lawyer. She operates Deloras O'Neill Mediation Services, Inc. in Moncton, New Brunswick
Best-selling book on issues facing family court system leads to online talk show
By the Honourable Justice Harvey Brownstone
We are all aware that the single most important area of law that touches more people's lives than any other is family law. This is because family breakdown has reached epidemic proportions in North America, due in part to the facility and speed with which the multiplicity of social networking websites on the internet have enabled people to embark upon and terminate relationships. In recent years, family courts across the continent have become clogged with an avalanche of unsuccessful short-term relationships – relationships that were just long enough to produce a child. There is every reason to assume that this trend will continue as more and more people choose to engage in intimate relationships with partners they barely know.
Despite the widespread incidence of relationship breakdown, most people I encounter in my courtroom are remarkably ignorant of even the most basic principles of family law. The fact that in most major centers in Canada, up to 70% of all family court litigants are self-represented, only makes the problem worse. And the fact that a great number of family court cases involve vulnerable children caught in the middle of high conflict parental disputes, makes the situation urgent for the parents and children involved.
I firmly believe that judges are not just adjudicators, but also public educators. Every day, in family courts throughout North America, family court judges convey information about the law and share insights with the litigants who appear before them. We spend inordinate amounts of time educating litigants about: their substantive and procedural rights and obligations; the laws of evidence; the benefits of counselling, mediation, parent education programs, parenting co-ordination, alternative dispute resolution, etc. And most importantly, we spend a great deal of time and energy attempting to sensitize parents to the negative impacts on their children of being exposed to parental conflict.
What if parents could get the information they need before deciding to litigate so they could make informed choices regarding dispute resolution options? What if parents could hear directly from a judge without going to court, so they might have a better understanding of what to expect from family court and equally importantly, what the court is going to expect from them? This is what motivated me to write Tug of War: A Judge's Verdict on Separation, Custody Battles and the Bitter Realities of Family Court, which was released in 2009.
Although I think we all knew that there was an intense hunger and need out there for this kind of information, I could not have anticipated that Tug of War would spend 13 weeks on the national best-seller list and launch me into an 18-month, 50 city speaking and media tour across North America to promote the book and its quintessentially simple message: separated parents must love their children more than they dislike each other, in order to reach compromises and put their children's needs ahead of their own.
Nor could I have anticipated that the book's success would lead to the next stage of my ongoing quest to educate the public: an online talk show. Last year, I began hosting a public education program called Family Matters operated by AdviceScene Enterprises Inc., which is owned by Nancy Kinney, a lawyer in Victoria, B.C. Family Matters, which can be viewed for free at www.familymatterstv.com, focuses on a wide variety of issues relating to family law, the justice system, relationships, parenting and the wellbeing of children. So far we have filmed 9 episodes dealing with: the fundamentals of child support; mediation; collaborative law; child protection law; the role of child's counsel; elder abuse; prenups; how to manage your lawyer; and an interview with Debra Moskovitch, author of The Smart Divorce.
As a result of the internet episodes “going viral,” Family Matters has been picked by the CHEK TV network and is now a prime time TV show. It airs on CHCH TV every Tuesday night at 10:30 p.m. and on a number of other stations across Canada in the CHEK network. This season will feature episodes on parental alienation, grandparents' rights, men's issues in family law, domestic violence, sexual addictions, parenting coordination, successful step-parenting, online security and privacy, and much, much more.
I am grateful for the hundreds of letters and emails I have received from lawyers, judges, social workers, teachers, mental health professionals and parents, praising Family Matters for providing important, easily accessible information to parents in conflict. Anyone with feedback or suggestions for future episodes should feel free to contact me at harvey.brownstone@ocj-cjo.ca.
Note: all of my royalties from the sale of Tug of War have been paid directly to the Children's Wish Foundation. I receive no remuneration for my participation in Family Matters, but I have directed that 25% of the show's profits be donated to children's charities.
Justice Brownstone presides at the North Toronto Family Court. His book Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court was published in 2009 by ECW.
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Move from law to action and hear the child
By Suzanne Williams
« . . . hearing from children is in their best interests. Many children want to be heard and they understand the difference between having a say and making the decision. Hearing from them can lead to better decisions that have a greater chance of success. Not hearing from them can have short and long term adverse consequences for them. While concerns are raised by some, they can be dealt with within the flexible legal framework found in the Convention [UN Convention on the Rights of the Child].”
Justice Donna Martinson, in B.J.G. v. D.L.G., 2010 YKSC 44, para 4.
Never has the law been clearer that we must hear from children when their best interests are determined. This topic has been addressed with increasing frequency at conferences and in publications in recent years. Yet, more work is required to move this concept from the pages of our laws to daily practice in family justice matters.
A group of professionals committed to improving this situation formed the B.C. Hear the Child Society in late 2009. With funding from the Vancouver Foundation, we are building opportunities to hear from children in B.C. when their best interests are determined. How did we get here, and where do we hope to go? Hopefully, the following article will provide some answers.
Click here to continue reading.
Suzanne Williams is Deputy and Legal Director for the International Institute for Child Rights and Development (IICRD), University of Victoria, and is Advisor/Project Director for the Hear the Child Society of BC.
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Public Commission on Legal Aid – building on Foundations for Change
By Stephen McPhee
This past year has seen a tremendous increase in the energy devoted to justice issues with a particular interest in legal aid. With the Public Commission on Legal Aid we witnessed a groundswell of interest – both in the justice system and in the public and media – in legal aid and the impact it has on the public in British Columbia. I have been very fortunate to have been a part of these events in my role as Canadian Bar Association British Columbia Branch (CBA-BC) President. As I start my year as Past President, I am acutely aware of the work that still needs to be done, and the entire Executive, with President Sharon Matthews at the helm, is anticipating a busy year ahead.
As a brief background, the CBA-BC spearheaded the Public Commission on Legal Aid Steering Committee along with five other funding partners: the Law Society of British Columbia, the Law Foundation of British Columbia, the British Columbia Crown Counsel Association,and the Vancouver and Victoria Bar Associations. Those partners were joined on the Steering Committee by a representative of the Coalition for Public Legal Services.
After public hearings across B.C. in late 2010, Commissioner Len Doust Q.C. released his report, Foundations for Change, in March 2011.
It is an understatement to say that the Public Commission was a success. We created a groundswell of interest – in the justice system, the public and the media – in legal aid and the impact it has on the public in British Columbia. The report itself and more background on the Commission can be found online. I encourage you to read the report and share it with your peers/colleagues.
One of the key issues raised in the report is the importance of family law and poverty law services – areas that were affected the most by the cuts to funding in 2002. The question everyone is asking is, “what's next?”
The CBA-BC's work on legal aid is focusing on public engagement. We believe that the public must be the driving force to motivate government to fund legal aid in a way which is both reasonable and stable. To that end, we have several initiatives underway.
On May 25, 2011, I hosted a roundtable meeting of many community agencies with interests in the provision of legal aid. This group had previously met prior to the establishment of the Public Commission on Legal Aid, to discuss strategies for encouraging public discourse and action on the topic of legal aid. This meeting was part of the action plan committed to by the CBA-BC under the Law for the Future grant to engage communities and the public in post-Public Commission action.
Also under the same Law for the Future funding, four social media videos about legal aid have been prepared by Thinklab Consulting, with a goal of public education about specific groups affected by legal aid assistance. The videos are available on YouTube.
A Facebook site has been created under the same name. I encourage you to view the videos, pass them on, and “Like” the Facebook site.
On June 19, 2011, the Provincial Council unanimously directed the Branch to retain the services of a professional communications firm to support a public campaign in support of legal aid. Pacific Issues Management has been retained and is currently conducting public opinion research and building a public engagement strategy.
On September 22, 2011, the Legal Aid Committee of the CBA-BC hosted a second Day for Legal Aid public event. This year's program was held in Kamloops at Thompson Rivers University and was telecast live to the University of B.C. and the University of Victoria.
Several other longer term projects are underway, including discussions with the courts, the Law Society of British Columbia, the Attorney General and the Law Foundation about developing an Access to Justice event designed to increase public dialogue about, and contribution to, the strength and stability of B.C.'s justice system. CBA-BC is also involved in efforts to develop a research agenda to support initiatives to increase Access to Justice.
While public engagement is the focus, we are also continuing our government relations efforts. To that end, Commissioner Len Doust Q.C., President Sharon Matthews and I met with then-Attorney General Barry Penner in June. The meeting was focused on a discussion of the Foundation for Change Report. We made the case strongly and persuasively that funding for legal aid should be seen as an investment which will save money elsewhere in the justice system and in the government as a whole. The Attorney General was interested in this approach and we agreed to work with his Ministry in pulling together the statistics and information currently available to support this approach. The Attorney General was also candid that in the current economic climate - and especially if the HST referendum results in elimination of the HST - he is not hopeful that the Treasury Board will approve increased funding in the short term.
We are continuing to make the point that, especially in a climate of scarce resources, it is even more important to properly fund the justice system as that spending is an investment that saves public spending in other areas.
We will continue with these efforts in the coming year and look forward to your continuing support for these endeavors.
Stephen McPhee practises at Ramsay Lampman Rhodes in Nanaimo, B.C. He served as president of CBA-BC in 2010-2011.
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“Best interests of the child”: An update
By Gaylene Schellenberg
The National Family Law Section has taken on the challenge of communicating to Members of Parliament, and members of the public, the importance of retaining judicial discretion as to what is in the “best interests of the child” as the predominant consideration in custody and access determinations. Section members have become somewhat alarmed that, under the guise of “gender equality”, the focus has been steadily shifting to prioritize parents' “rights” to exactly equal parenting time following the breakdown of a relationship, rather than what is best for the children involved.
The Section first prepared a detailed submission analyzing a private member's bill (formerly Bill C-422, sponsored by MP Maurice Vellacott) that would introduce a presumption of equal parenting time. That brief was widely circulated, and also presented to the Justice Minister during a meeting with then-CBA President D. Kevin Carroll Q.C., LSM and past Section Chair, Grant Gold. At the last three annual Canadian Legal Conferences, the Minister has been asked by Section members to reiterate his public support for retaining the “best interests of the child” test.
In addition, the Section prepared a communications kit to facilitate contact by Section members with their respective local MPs, and others who might be interested. The kit contains a cover letter for the submission, speaking points to use during the meeting or in a media interview, and a brief one page summary to share with anyone interested. The Section plans to recirculate the brief and cover letter to all MPs in the coming month, and offer to arrange meetings with those who are interested. I have asked Section members to let me know when they do find an opportunity to meet with their MPs, so I can track the Section's progress in getting the message out.
For more information, please contact me at gaylenes@cba.org, or at 1-800-267-8860, ext 139.
Gaylene Schellenberg is a Lawyer, Legislation and Law Reform in the CBA National Office.
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