Are solutions to family law problems closer than we know?

Posted on February 25, 2013 by Hilary Linton

The “crisis” in family law has been a favourite topic for years.

The problem: a costly, adversarial legal system that is ill-equipped for today’s family law problems.

Scales of JusticeIt has been studied in depth, with many suggestions for improvement. A recent draft report by the National Action Committee on Access to Justice contains many such ideas.

But we should also be looking at what is working– and it is closer to home than many may realize.

Ontario is far ahead of the other provinces when it comes to funding services that increase access to family justice.

Ontario long ago created specialized Family Courts and funds extensive services including triage, screening and mediation.

In Toronto, for instance, a person who is separating from their spouse may access these free services:

  • an information program that explains the system, mediation, and available services
  • triage, guidance and referrals from a trained Information and Referral Coordinator
  • information (in a range of languages) about separation, family law, courts, forms, mediation, community services, legal aid, translation, counselling, social services, and more, in a Family Law Information Centre;
  • support, including free legal advice, from a Family Court Support Worker, available to help victims of family violence
  • legal advice from duty counsel or advice counsel
  • screening for mediation, and mediation, provided by accredited on-site mediators who are either family lawyers or mental health professionals
  • highly subsidized additional mediation for more complex cases, provided by accredited lawyer or mental health professional mediators,
  • mediation provided by Legal Aid Mediators; Justice Net mediators and in some courts staff mediators.

Ontario has the infrastructure and trained professionals to provide the front-end triage, dispute resolution and support services recommended by so many of these reports.

And British Columbia is leading the way in legislative reform.

Recent changes to the Family Law Act require family lawyers to manage files with settlement, rather than court, in mind.

And it is the first jurisdiction to take safety seriously, requiring family law professionals– lawyers, arbitrators, parenting coordinators, mediators, collaborative practitioners– to assess family violence and how they will keep parties and children safe.

If all jurisdictions could have British Columbia’s family law statute and Ontario’s resources— enormous progress could be made towards addressing today’s access to justice concerns.

Posted in ADR Training, AFCC, Arbitration, Collaborative Practice, Culture, Custody of children, Domestic Violence, Family Law, Lawyers, Mediation, Negotiation, Training | Tagged , , , , , , , | Leave a comment

B.C. Family Law Act: a new duty to keep clients safe?

Posted on February 20, 2013 by Hilary Linton

The new and revolutionary British Columbia Family Law Act is something all family lawyers, mediators, arbitrators, parenting coordinators, collaborative practitioners and mental health professionals should note.

It is the best reflection of current family law needs in the country.

It goes farther than any other to make clear that the old way of doing family law— court proceedings, adversarial pleadings, affidavits, motions and trials— is dead.

My excellent team of coaches in Vancouver.

My excellent team of coaches in Vancouver.

Lawyers must now design every step of their cases to meet the goal of a balanced and informed early settlement. The culture of using adversarial proceedings to leverage a settlement is gone.

And, most importantly, it tells everyone in the family law business– including lawyers– that they have a responsibility to try to keep their clients safe.

The statute acknowledges what all of us in the divorce business know: we are working in a danger zone.

Its emphasis on identifying, assessing and managing power imbalances and family violence is unprecedented.

Everyone in the family law business knows, or should know, that domestic murders and murder-suicides occur most often in the context of separation, that these cases have predictable characteristics, and that they are often preventable.

And the research tells us that unless lawyers, mediators, parenting coordinators or arbitrators ask specific questions about coercion, control, intimidation, abuse and violence, there is an excellent chance they will completely miss a dangerous dynamic. This void can lead to procedural choices that expose clients and their children to risk of harm and/or poor outcomes based on undetected coercion.

The new Act therefore requires ALL family law professionals, including arbitrators, to meet with their clients before agreeing to take the case, for the purpose of “screening” for family violence and power imbalances. If family violence is detected, the professional must assess any safety risk facing the client and his or her family, and take steps to design a process that will address such risks.

To do so, family law professionals will need to learn the various types of violent relationships, how to differentiate among them, and what dispute resolution process choices are best able to keep parties and their children safe. They will also need to understand the research generally on power imbalances in family law cases, and how the various process options can be designed to manage such imbalances.

This responsibility extends to lawyers, mediators, arbitrators, parenting coordinators and family counsellors meeting potential clients.

The Act also requires family dispute resolution professionals– mediators, arbitrators, parenting coordinators– to take a 14 hour course in Screening for Family Violence and Power Imbalances.

I was in Vancouver in January to deliver this training on behalf of CLE BC– the organization that delivers legal training to the province’s lawyers. I trained two groups of lawyers, mediators and arbitrators (including one bencher and one judge), along with a group of lawyers and mediators who acted as coaches in the training. It was quite something to engage in the reflective dialogue that took place during these workshops.

It will be interesting to see if other provinces follow the B.C. lead…. stay tuned!

Posted in Arbitration, Collaborative Practice, Culture, Custody of children, Diversity, Domestic Violence, Family Law, Lawyers, Mediation, Negotiation, Parenting Coordination, Training | Tagged , , , , , , , | Leave a comment

Damages awarded for breach of confidentiality

Posted on February 19, 2013 by Hilary Linton

IMGP2033Most mediation agreements provide that the process is confidential. And parties will often agree that the terms of their settlement are to remain confidential too.

What is the remedy if someone breaches mediation confidentiality?

In a recent decision of the Ontario Human Rights Tribunal, a party to a settlement who breached confidentiality received a $1000 penalty.

In Tremblay v. 1168531 Ontario Inc., the parties reached a settlement in mediation. One of the terms of the settlement was that its terms would be kept confidential. However, one of the parties (the employee) posted comments on facebook about the mediation process and its outcome, in breach of the confidentiality provisions.

The employer then refused to make the settlement payment and asked the Tribunal to declare the entire settlement void. The Tribunal agreed that the employee violated confidentiality and reduced her settlement by $1000— but required the employer to pay the rest.

So— confidentiality clauses have teeth! And be careful what you post on facebook!!

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I am proud to be a Canadian mediator!

Posted on February 11, 2013 by Hilary Linton

imagesToday Kathleen Wynne becomes Canada’s first woman premier.

As a woman, I am proud. As a person with a lesbian sibling, and many close gay and lesbian friends and colleagues, I am proud.

And as a mediator, I am very proud!

Kathleen is the first mediator ever to become premier. And what a mediator she is.

Her bio says she studied ADR at Harvard. And so she did. But she didn’t just take a Harvard course and call herself a mediator.

Kathleen first took training at St. Stephen’s House in Toronto, and volunteered there as a community mediator.

She also studied family mediation at the foot of one of our great family mediators, Dr. Barbara Landau. And she had a private mediation practice too.

In her life before politics she worked hard to develop peer mediation programs in schools.

We all have great expectations for our new premier, and that will be her greatest liability. But somehow I doubt, with all her mediation skills, that she will disappoint.

Congratulations Madame Premier!!

Posted in ADR Training, Culture, Diversity, Family Law, Inspiration, Mediation, Negotiation | Tagged , , , , , , , , , | Leave a comment

A Parenting Schedule that “makes sense”.

Posted on February 4, 2013 by Christine Kim (Associate)

kids

Children in two homes can thrive if the parents can work together to meet their needs.

When discussing Parenting schedules, I start off by asking parents to tell me about their child—describe their personality, likes, dislikes, sensitivities, how they deal with change, how they experience the world…the list goes on.

Everything that is discussed around parenting should incorporate the perspective of a child.   For example, a child who is more reserved, takes time when change is presented, finds comfort in his/her surroundings, may find transitions very difficult.  Finding strategies to help with the transitions is important and should be discussed and incorporated into a parenting schedule.  I often say to parents, “your child needs to get grounded before they can fully engage, so we need to figure out ways to do so, that would help your child.”

Often times, parents come in trying to fit the child in their schedule, which can be very stressful.  Parents need to understand that children have a different understanding of what is “fair”.  Parents will often ask for equal time because it is the “fair” thing to do.  The question is, “fair to whom?”  Kids do not divide their love for parents on a 50/50 basis.  Kids often say that living with each of their parents equally has nothing to do with how much they love them.  Having said that, a 50/50 schedule can work for some children, but it should not be a formula.

Children should not just “tolerate” the schedule, but rather we should be designing a schedule the “makes sense” to the child so s/he can thrive.

My dad used to tell me that a child was like a plant, starting off as a seed and depending on the amount of sun, water and the soil’s richness, the seed will either flourish into a beautiful strong flower or wither. Depending on the species of the plant, it may require full sun light versus partial.  This applies to the schedule.  Some children, depending on age and temperament may require more access time with a parent that s/he is craving.

Perhaps calling it a “child’s schedule” instead of a “parenting schedule” is more appropriate. When figuring out a schedule that works for your family, take a moment and imagine what it feels like for your child.  Now, imagine if there is conflict between you and the other parent, there is another layer your child has to negotiate.

As parents, we can do a lot for our children so they can thrive in two homes. Creating a schedule that “makes sense” from the child’s perspective, and supporting the other parent is an excellent start.

Posted in Custody of children, Family Law, Lawyers, Mediation, Parenting Coordination | Tagged , , , , , , | Leave a comment

Mediation and Arbitration Training in Toronto’s Ahmadiyya Muslim Community

Posted on January 23, 2013 by Hilary Linton

amjc3In the fall of 2012, we were retained by Toronto’s Ahmadiyya Muslim Jama`at, Canada (AMJC) to provide training in family law, family arbitration law and procedure, and screening cases for power imbalances to its mediator-arbitrator members.

The AMJC provides a community-based conflict resolution process for Muslim couples who wish to resolve their matrimonial disputes within the community and in accordance with the principles of Islam. The process itself is quite ancient, involving the use of family representatives to support the couple to the extent that a reconciliation of the dispute and relationship is possible, and a formal arbitration process if it is not. Such processes are well-established in faith-based communities across North America.

In 2007 the Ontario Ministry of the Attorney General changed the Arbitration Act and Family Law Act in ways that affected all family arbitrators, inside and outside faith communities. These positive changes have resulted in better arbitration procedures with better qualified arbitrators.

Among other things, the changes required that arbitrators apply the law of Ontario or Canada; that anyone participating in a family arbitration process must first obtain independent legal advice on the Arbitration Agreement; that all family arbitration decisions have a right of appeal; and that family arbitrators must confirm that the parties have first been screened for power imbalances to ensure they are suitable candidates for a private adjudicative process.

The new regulation also requires those providing arbitration services to receive specified training, including training in family law, and training in the tools and processes for screening parties for power imbalances.

All of us at Riverdale who helped deliver this training felt that we learned as much from the AMJC members as they learned from us. It was a rich lesson in cultural differences, history and the fascinating and complex intersection of secular and religious law. We were invited to participate in community events during our tenure at the beautiful Mosque and community centre north of Toronto. We were treated with the utmost of respect and kindness, features we came to recognize as hallmarks of the Ahmadiyya Muslim community. And we were respectfully challenged throughout the training by our “students”, who included businessmen, public school teachers, a Justice of the Peace, lawyers and medical doctors.

In her recently published book “Islamic Divorce in North America”, Dr. Julie MacFarlane examines the role of faith in Western Muslim marriage and divorce processes, and the extent to which processes such as those offered by the AMJC are embraced by men and women in the community as part of their religious and cultural identity. She also describes the challenges faced by such processes as they seek to adapt to growing rates of divorce within their communities and the evolution of the culture between generations.

Our experience taught us that the AMJC is responding to these legislative and social changes with careful and sensitive thought, insight and intellectual vigour. We are thankful for this opportunity.

Posted in ADR Training, Arbitration, Collaborative Practice, Culture, Diversity, Domestic Violence, Family Law, Inspiration, Lawyers, Mediation, Parenting Coordination, Training | Tagged , , , , , , | Leave a comment