A trial judge awarded joint custody and equal parenting time for both parents of two children. The wife appealed the decision, arguing that the judge had ignored the evidence that the parents could not communicate and also their history of domestic violence.

However, the Court of Appeal ruled that there was evidence before the trial judge suggesting that the parents would be able to communicate effectively and that joint custody was in the best interests of the children. The trial judge also took the history of violence between the parties into account; meaning the evidence was not such that the court should deprive the children of maximum contact with each parent.

Another of the wife’s concerns was that the trial judge did not impose a mechanism to resolve disputes, as neither parent was given final decision-making authority. The Court of Appeal noted, however, that the judge had no jurisdiction to impose any dispute resolution mechanism on the parties, and that the trial judge’s recommendation that they attend mediation was appropriate. Failing that, they will have to go back to court if they cannot agree.

This part of the trial judge’s decision was unfortunate. In high conflict cases like this one, it may be better for the children if the parents each have final decision-making in separate areas, sometimes called “parallel parenting”. Each parent has his or her own area of responsibility, reducing conflict between the parents and reducing the need for any conflict resolution process. The trial judge also could have retained jurisdiction to deal with this issue if the need arose later, leaving the door open for a parallel parenting kind of decision-making regime in the future if necessary.

It would be much better if Ontario passed legislation giving judges the authority to impose a parenting coordinator in appropriate cases, as is the case in many US states. And if judges were more willing to try imposing conditions, like the parties attend mediation screening, as conditions of parenting orders.

But the fact that the court cannot impost a conflict resolution process on difficult parents should not stand in the way of a joint custody arrangement if that is in the best interests of the children. For more information, see May-Iannizzi v. Iannizzi, 2010 CarswellOnt. 5353.

What do you think?

I also often recommend that clients use Skype to stay in touch with their kids, even when they are in the same city.

Skype is free and it is easy. All you need is a computer and a webcam. Kids love it because it lets them talk with their parent and see their face at the same time. It is an ideal way for young children to have meaningful time with the other parent, even for very short calls.

I was thrilled to read that a judge in New York recently ordered a mom to set up Skype on her computer as a condition of moving the child to another state. The unemployed mother wanted to move from Long Island to Florida where she could live with her parents and find work.

The judge allowed the move on condition that she facilitate Skype access between the children and their father.

The case is Baker v. Baker and is a decision of Suffolk County Supreme Court Justice Jerry Garguilo. I am not aware of any Ontario decisions requiring Skype access but would welcome hearing news of any.

The Canadian Bar Association is speaking out against a Conservative bill that seeks to make 50-50 time sharing for children of divorce the norm.

Such a presumption, of course, puts the rights of parents ahead of the best interests of their children, but is hard to get the advocates of such legislation to understand this.

Without question, a 50-50 time sharing arrangement is often best for the child. But not so in all cases. The only way to arrive at the best possible plan for each child is to look at all the circumstances, in each separate case, of both parents and the child and tailor the parenting plan to meet that child’s needs.

To legislate any particular parenting plan as the presumptive norm would eliminate the “what is in the best interests of this child” analysis. And that would put children at risk of not having their needs met.

There are many cases where a 50-50 is not the best for the child. This does not make one parent better than the other. Nor does it mean the child will be estranged or alienated from the parent who is less involved in the day to day upbringing. Research is clear that a child’s bond with his or her parent is determined more by the quality of the time spent together than by the amount of time.

To presume that it will always be in the child’s best interests to live equally with each parent could seriously jeopardize the stability and well being of a child, especially a young one, who has formed different kinds of attachments to the parents. A presumption of a 50-50 arrangement ignores the possibility that what will be best for the child is a gradual change to allow the child to develop the kinds of safe attachments necessary to be parented differently from what the child has grown accustomed to.

It is unfair to the child that the onus of proving that any particular arrangement is NOT in the child’s best interests should fall on the parent who may in fact understand the child better but not have the resources to fight a legal battle. That is why mediation is almost always the best way for parents to determine, together, what will be in their child’s best interests.

The system is not broken. The “best interests of the child” test is the only one necessary and it works. Leave it be.

I recall passionate first year discussions. We would be feminist lawyers; poverty lawyers; landlord and tenant lawyers; family lawyers;environmental lawyers; human rights lawyers; defamation lawyers—- always acting for the little guy or girl. Somehow along the way most of us ended up taking articling jobs– and then accepting first year positions– at the big downtown firms and never really looking back. Most of us just took what came our way, and it was usually good, with more money and excitement than we had ever expected.

Now, we all read the “Announcements” section of the Ontario Reports, to see what our colleagues (and increasingly, their children) are now practicing law. Most have either stayed where they started or, like me, have gone on to create their own firms and practices.

So you can imagine how refreshing it was to read, in the July 30 edition, the following announcement for the firm Olthuis, Kleer, Townsend LLP:

“We work towards justice for Aboriginal peoples, protection of the environment and advancement of human rights.”

In about 23 years of reading the Ontario Reports, I have never seen such a proclamation! And so I cut it out (I still get the hard copy, oldtimer that I am…) and posted it on my cork bulletin board.

Congratulations Olthuis, Kleer and Townsend LLP. You made my day.

She is but the third woman, of all 63 Treasurers in the Society’s 213 year history.

And she is a family lawyer. She has experience in and passion for the legal issues that touch most people the most directly; separation, divorce, the best interests of the children and same sex rights. This alone will make her a great leader for the legal profession, because she will help us stay focused on the things that really matter to our clients.

I have known Laurie for many years. She is one of those lawyers who always has time for her colleagues, particularly those with less experience and confidence. She is a “no-B.S.” kind of person; frank, honest, direct, considerate and often very funny. She has worked hard on one of the most troubling issues facing the profession; the difficulty we have keeping good women practicing law.

It is an exciting honour for a friend and colleague; and a great opportunity for the province’s lawyers.

After all, Justice Brownstone is a national celebrity and I am just another mediator.

If you have not checked it out yet, take a look at the website for Family Matters, an inventive online television program dealing with cutting edge issues in family law.

You may know Justice Brownstone from his ground-breaking book, Tug of War. In it he talks bluntly about what is wrong with the court system and how Canadian families are not being well served by the justice system. He offers invaluable observations and perspective on the problems and their solutions. Needless to say, he is a big fan of mediation.

Justice Brownstone’s show starts taping in July and will be on the “air” soon afterward. It will be well worth tuning in to see. Take a look at his website for more information: www.familymatterstv.com

As for me, you can still see the pilot of “The Feud” if you look hard enough, but I have clearly been passed over by someone who is making a real difference, Harvey Brownstone. “

Fast forward 30 hours into my internship and I am inspired and transformed with the process and the people.

After spending 7 years as a family law litigator and 10 years as senior management in a large law firm, I had listened to many stories from one side or another and certainly paid more than lip service to the adage that there are two sides to every story. But not until I sat with two people sitting across the table from each other, with a skilled mediator encouraging them to speak and discuss their interests, did I really see how vital a concept this is for all of us to fully embrace and participate in. Whether it is our partners, children, employees, employers, family or friends, learning to see things from another’s perspective, to acknowledge that everyone has a story to tell, to understand that by listening, and allowing that story to be told, you are not agreeing, but empathizing with the other, is truly enlightening.

Mediation as a process is one that will hopefully be the wave of the future for all family disputes. It allows the parties to deal directly and honestly with each other in a forum that is not designed to encourage animosity. While there will be disputes that will not be appropriate for mediation, I would like to believe that these will be few and far between. My exposure so far has been extremely limited but, it has been a long time since my reaction to work has been “I love it”!

Stay tuned ……………….

The trip started with my dad patiently waiting in the driveway to take me to the airport at the bright and early hour of 5am. He’s not a man of many words. It is not unheard for us to travel many hours without a word exchanged. After I explained what AFCC is all about and my role as a mediator, he asked with a puzzled look, “So, people actually get paid to do that?”

You see, my dad is one of the first Korean immigrants to arrive in Canada – a true pioneer. But it is not his time of arrival that makes him a pioneer in the Korean community but his involvement in the community. During my childhood, our living room became the hub of community meetings and mediation sessions. Whether they were families in conflict or an upset community member who feels misunderstood, there sat my parents facilitating discussions and finding a way to work things out.

I recall one day, a woman who was in conflict with her husband, sat on our back porch while my parents met with her husband in the living room – this was a true old-fashioned “caucus”. She leaned over to me and said, “Your parents are very wise”. Although I can appreciate that observation now, as a kid, my parents were just being parents and wise was not a description I would have bestowed on them.

My sister and I were exposed to late meetings, often filled with high emotions and lots of tea. Most cases, the meetings would end with tears and hugs and closing words of wisdom.

Looking from the lens of my dad, his question makes a lot of sense. Here is a man who has dedicated his life to building a community. As someone who is respected and wise, people would naturally come to him to help solve their issues. This idea seems so basic and organic when viewed in this way.

I sit in the AFCC plenary session, surrounded by hundreds of people, who have numerous letters behind each name indicating their level of education and indicating their competence and expertise. I realize in many ways, this collaborative approach is like a big powwow of community members help
people live their lives with dignity and to build a sense of community.

As I listen to Hon. Emile R. Kruzik’s closing speech, filled with emotion and gratitude, I realized that being the President of AFCC is not just about leading an organization but it’s about trying to do what my parents have done for decades. I am surrounded by people who are “carriers of wisdom” trying to find the ways to colleagues, mentors and friends and a sense of community and renewed energy into the important work we do.

To my father’s question, I respond, “Yes, dad. We get paid. It’s hard work.” He kept his eyes on the road and responded with a quiet “hmmm”.

“Conflict:  a lack of awareness of the imminence of death”.

This is one of the best definitions of conflict that I have seen. It comes from one of my favourite books about dispute resolution, “Mediating Dangerously” by Kenneth Cloke.

I am often taken aback at how easy it is for all of us, me included, to forget how short our time on earth really is. And how unimportant most of the things are that cause us daily distress.

A good friend just finished the El Camino, an 800 km trek through France and Spain. His journey too reminded me that life is short, its pleasures great, and its conflicts often not worth getting one’s knickers in a knot about.

Those of us in the field of family mediation find ourselves often facing people in dire distress, usually over things that will not matter much in the long run. And yet we cannot judge them because, at the time and to them, these things are important. But we can, gently and compassionately, try to help them gain some of the perspective that my El Camino pilgrim friend acquired without having to get all those blisters.

This photo comes from an island in Georgian Bay, one of my favourite places to reflect, rejuvenate and appreciate all the great things life gives us.

For people with difficult, deeply-rooted disputes, this can be a very useful process. It offers them the opportunity to resolve the matter — hopefully quickly, confidentially and effectively–with someone in whom they have great confidence.

A good mediator-arbitrator is a trained, skilled and experienced professional, usually but not always a lawyer. In family law cases, we will meet first with each party separately to screen them and their case, to try to ensure that they and the subject of the dispute are good candidates for this special dispute resolution process.

We will then work hard with them to try to resolve the dispute in mediation. We will encourage them both to try to craft a solution that will likely be better for them both than the alternative, which is an arbitrated decision that neither may like. The parties will often attend this part of the process without their lawyers. The mediation will focus on what each of them needs to reach an agreement that is “good enough” for a settlement. The mediation is generally not a legally evaluative process; rather it is a focused exercise in intense problem-solving. Most people find that they are able to reach creative and satisfactory settlements.

If the mediation does not result in a settlement, the process will then change into a decision-making process. The mediator and the parties and (usually) their lawyers will meet at another time, and the case will be presented to the arbitrator much in the same way as a case in court. Each person will give his or her evidence and each lawyer will make his or her arguments, and the arbitrator will issue a written decision.

Mediation-arbitration is not for all cases. It requires the parties to have a great faith and trust in the integrity and competence of the mediator-arbitrator. The role of mediator-arbitrator can be a challenging one and the professional must remain neutral, impartial, professional and committed to a fair process at all times. But the process also allows for considerable creativity because it is a privately negotiated and provided process. There are certain requirements for the training of the arbitrator and the form of the arbitration agreement, but there is great latitude in how the arbitration process is structured, making it a flexible dispute resolution option for many.