Interesting Family Law Issues by Hilary Linton - 2003. These are interesting times for anyone with an interest in family law. First, there is the book recently self-published by Carlene Vandenelson, the London Ont. mother who abducted her three children and took them to Mexico two years ago. She was eventually acquitted on charges of kidnapping because she was acting in the best interests of the children. She said at her trial that it was fear of being denied any contact at all with her three kids that drove her to smuggle them into Mexico in the trunk of her car. The acquittal, which raised eyebrows among lawyers in the criminal and family law fields, will probably be appealed by the Crown. Whether or not you think she was justified in doing what she did, her book is likely to find some supporters among those who have experienced the family court process first-hand. Her book is an indictment of the province's family court system, which she claims is a “lucrative and unchallenged industry” in which the interests of children are subordinated to “the financial, political and personal interests of self-serving politicians, family lawyers, clinical “experts” and vindictive parents.” Whew! Though the language is strong, the underlying sentiment holds more than a grain of truth for many who have litigated their parenting disputes. The current legal regime creates a “winner-loser” scenario which contributes to parental conflict. Research shows that, for most parents, the adversarial arena is inappropriate for resolving parenting disputes. Agreements reached outside of court settings have been shown to be more satisfactory to parents and children alike, and more likely to be respected. Virtually all the research done comparing satisfaction levels of parents in litigation with parents in mediation shows higher levels of satisfaction with both process and outcome in the mediation groups. However, family law litigation will sometimes be necessary, and Miglin v. Miglin, just heard by the judges of the Supreme Court, is such a case. Miglin has fuelled legal seminars, articles, and debates for three years; one has to wonder what family lawyers are going to talk about once the Supreme Court makes its decision. You may recall this case; it is about the wife who convinced a judge to re-open a separation agreement, five years after she signed it, and award her spousal support. The judge found that, acting under the stress of a crumbing marriage, Mrs. Miglin had agreed to a deal that was unfair to her. As well, the court found, circumstances had changed since the agreement was signed, Mrs. Miglin needed the money and Mr. Miglin had the ability to pay it. The Court of Appeal agreed, saying that the current law sets the bar “almost unattainably” high for spouses seeking to change an unfair agreement. This flew in the face of probably the first principle taught in law school; that a contract is a binding, legal document. Once a contract is made, you cannot get out of it just because it turns out to be a bad deal. In family law, the concept of “finality” of separation agreements is particularly important. People make such agreements so that they can plan and get on with their lives. If separation agreements can be easily set aside, people will not be able to rely on those agreements to make future decisions, causing chaos in the lives of many separated families. And so the question to be decided by Supreme Court is clear enough; what matters more, fairness or finality?