Thomas Dart, Partner, Family Law

How people approach climate change and how people approach family conflict are amazingly similar. Here are some of the similarities:

Climate change Family law disputes
People deny climate change is happening At least one of the parties denies that there is a conflict which needs attention
Those people who accept that climate change is happening do not know what to do about it People in family conflict do not know how to resolve the conflict in a constructive way
Those who deny climate change belittle and denigrate those who accept that it is happening thereby creating more conflict One partner will belittle and denigrate the other thereby increasing the family conflict
Polarization occurs in climate change conflict Polarization occurs in family conflict
Polarization leads to harmful attempts to resolve the conflict such as not so peaceful demonstrations, litigation, resistance to law and order, refusal to accept authority. Polarization leads to hard-fought and intense litigation at the one end and to family violence at the other end. Often, one partner will not accept judicial rulings.
Neither party to this conflict accepts responsibility for the conflict. Neither party to this conflict accepts responsibility for the conflict.
No one tries to find a better way to resolve the conflict. The only way seems to be a “might is right” approach. Marital partners who are separating sometimes prefer to remain in conflict. They do not see the other’s point of view and believe that there perspective to the resolution is the only right approach.
Meanwhile nothing happens to save the climate. Meanwhile nothing happens to save the family from increasing damage. The conflict continues.

There has been so much written about how to constructively resolve family conflict which is unfortunately so often ignored. When it comes to family law, there are two very important pieces which must be addressed. First, is the substantive law which sets out the rights and obligations of each party. The second, and perhaps more important piece, is the process under which the conflict is to be resolved.

If people in family law conflict take the usual approach, they will retain a lawyer who will provide them with the necessary information about the law. Some lawyers believe that the only way to resolve family conflicts is to maintain control over the client file and, more importantly,  the process under which the conflict is to be resolved. They will usually try negotiations with the other side first but if that does not work, they will automatically turn to the courts. It is well-known that once court intervention is invoked, the level of conflict rises rapidly. The more allegations each party makes against each other the higher the conflict rises. Each party continues to try to prove that they are right and that they have been unjustly treated by their partner.  The lawyer seems to fail to understand that each party to a dispute always has their own perspective which is sometimes not based in fact. They do not try to find solutions for the client. More importantly, they do not inform the client of the various methods by which family conflict can be more constructively resolved.

More and more people in conflict have come to the realization that the approach most lawyers advocate, namely  the court process, is very expensive and that it cannot resolve their disputes in a very timely manner. This is through no fault of the court system. Typical of government obligations these days, courts are seriously underfunded and all the people who work in the system are overworked trying to satisfy the demand. People in family conflict are no longer hiring lawyers because they cannot afford to do so. This only causes further delays in the court system because the people in conflict often do not understand the law, know how to follow procedures, lead evidence or properly present their case to the court for a decision. Judges do their best to help but they cannot act as counsel to each of the two parties.

The family law itself is a complex body of rules and regulations which takes years to completely understand and apply to any particular conflict. The court process is governed by The Family Law Rules which themselves are not easily understood and utilized by non-lawyers.

So what can we do. Some of the suggestions which have been provided through many studies in this area and which have yet to be acted upon are summarized as follows.

First, we can try to change the climate under which family conflict operates. Instead of turning first to litigation through the courts, family law lawyers should encourage clients to turn to a good mediator and, if mediation cannot resolve the dispute, then encourage the clients to turn to arbitration. Family law lawyers need to remind people that there are also other good alternate methods for resolving family conflict such as collaborative law and structured negotiations. Lawyers should be trained in each of these processes or at the very least understand how they operate in order to give their clients better options.

Secondly, we can try to simplify family law itself. There may well be a better way to divide up property than to force people to value assets at the date of separation, at the date of the marriage and then to establish if any of the property is not shareable with the other partner. While sharing the wealth accumulated during marriage is a noble objective, the process under which that sharing operates is fraught with difficulty and expense. Trying to find a value for property is a sure method of increasing conflict.

Thirdly, when court becomes necessary, we need to appoint judges to the court who are family law specialists and we need to create a “vertical” system of case management whereby each judge is assigned a number of cases and is responsible to assist in the resolution of those cases all the way through to a trial if necessary. This means that there must be a dedicated family law court which only handles family law matters and which has an independent scheduling process, an independent administration and which lets the judges who sit in the court manage it fully. There is a model for such a court in the Ontario system. We do not have to reinvent the wheel.

Fourth, and by no means final, we need to educate the public and those who find themselves in serious family conflict that there are many resources available to them to teach them how to better resolve their conflicts and with appropriate counselling, many may in fact decide not to separate but to remain together for the betterment of all. This entails creating a climate whereby the first option for families in conflict is to find help, not litigation.

We all have a responsibility to try to save our climate – for the sake of the planet and for the sake of our families. We have an equal responsibility to address family conflict in a much better way.

 Catherine Hyde, Paralegal

“Alternative facts” has now become a new catch phrase. What is an alternative fact? My take on it is that if I am doing the telling I believe my statement to be a plausible alternative to the truth. The question is, if it is an alternative to the truth is it in fact a lie?

In a matrimonial matter there are two parties and for ease of reference we will refer to them as “husband” and “wife” although they may be of same sex or living common law and deemed partners.

The husband sees the couch as “blue”. The wife sees the couch as “grey”. Is one of them stating an alternative fact?  It may be that one of them is colour blind and they truly see the couch as the specific colour they have stated.  That is their truth.

What if the wife states that the husband never helped with the children?  He worked long hours and was never available to help with the meals, bedtime routine etc. The husband states that he worked long hours but always ensured that he was home at dinner time to help out with the children’s homework and bedtime routine and then would do some work at home.  Who is stating the truth? Who is stating an alternative fact? Perhaps they are both stating the truth. It is their perceived truth. When one is hurting they may see things in a certain perspective that may or may not be entirely true. Having started court proceedings they are trying to make their case that they are the better parent. This may skew their vision.

It is important for your lawyer to be able to get to the truth and determine if perhaps there is a different side to the story. One should be careful of utilizing terms such as “never” and “always”. If you have chosen to tell your lawyer an alternative fact, that is, a fact skewed in your favour over the truth, your lawyer is not going to be able to help you sort out your issues. It is best to look at the overall picture and be as truthful as you can.  It takes two usually to bring the situation to the crisis point where you have sought to proceed by way of Court. Both of you will have your “side of the story” but so long as you do not rely on alternative facts and simply rely on the truth, your lawyer will be able to help you in an efficient and less time consuming manner. If your lawyer has to dig through the alternative facts to get to the truth, this will prolong matters and be costly to you.

Take a big breath, look at your situation in an impartial, non-emotional manner and provide your lawyer with the true facts.

Thomas Dart, Partner.

Around the world, in so many countries, we are witnessing the conflict which is created by the political party system.  We pride ourselves on our democracy. Yet, many of us feel it is not working. No party seems to be able to fix the many problems currently facing us. Poverty, climate change, gross income inequality, all are dealt with differently by each political party.  Some parties recognize it and propose solutions. Other parties ignore, don’t understand, or are ignorant about the problems.  One party pits itself against the other in an adversarial bombastic battle in which, now, all rules of normal civility are tossed in the dirt. Leaders distort reality in order to win power. Each party ruthlessly attacks the other’s leaders and party members as if their opponents were the epitome of evil. The “Leaders” unfortunately provide an example which many in society begin to follow. Whether it be England leaving the European Union, or the US electing a President more than half the people of their country did not want, the adversarial nature of party politics is not making the world a better, safer, place.  It creates “winners” and “losers” – more division.  It does not make society whole.

In families, when conflict erupts, the same type of “political system”, on a microcosmic scale, also can kick in. Conflicts over finances, communication, children, intimacy – all tend to become ‘adversarial’. One “party”, in an effort to persuade or take control, begins to demean the other – “you always do that – you never do this!”  The defensive party then, for protection, attacks back – “you never do this and you always do that!”  The conflict escalates. If it goes on long enough, the “parties” may find themselves at war in the adversarial system we call the Family Court. 

What if there were no political parties? What if we were able to elect our own chosen representatives to actually represent us and not their chosen political party? What if that representative could actually represent the interests and goals of our own community, without having to tow the party line? What if all the representatives of all our communities had to get together and figure out a way to address the interests and goals of all the communities: our city, our town, our province or our country? What if rules were set up which prohibited engagement in an adversarial battle and required the representatives to actually work together to understand and give priority to the interests of each community? They might actually find that there are common interests and common goals in each community which can be appropriately addressed without someone winning and someone losing.

What if, in our families, when conflict arose, instead of becoming adversarial, we asked why? Why are you so upset? What if we kept probing to find the source of the conflict – its root cause? When we see our partner verbally attacking us, instead of assuming we are the actual focus of the attack, we might find, if we ask, that the real focus is their own fear – fear of appearing inadequate, or perhaps of losing their job, or perhaps of being unloved. We might then respond very differently, once we understood.  How many times have you started an argument only to find at the end, that there was far more to the conflict than, for example, just not doing your chores around the house? Were you able to get to the bottom of the conflict? If you were, you probably ended up, once the conflict was behind you, in a loving embrace, with true understanding and true forgiveness cementing your relationship once again. You also probably learned something about each other from the conflict and you probably learned that your decision to try and find the root of the conflict made you both better people, because you were able to gain greater understanding, greater empathy.

The governing of our nation and the governing of our family relationships should not be adversarial sports – can we find a way to eliminate this growing and rather frightening trend from our governments and from our families? 

By Douglas J. Manning, Partner, Certified Specialist in Family Law

The Chicago Cubs have not won a World Series since 1908 and have not appeared in a World Series since 1945 (when they lost to the Detroit Tigers)

But now, with the Cubs in the World Series, tickets to the 3 games in Chicago are the hottest commodity available.  I heard the average re-sale ticket price was over $3,000 for a single seat!

As you can imagine with a very limited time supply and a huge demand, people were going nuts to try and get a ticket.  I don’t think even President Obama could get a ticket and he is from Chicago!

And now for the “interesting” family law questions about those season tickets.

So with a married couple in Chicago separating and both spouses being huge Cubs fans there was the inevitable debate over who is getting the tickets to the one game they had tickets for?

The wife filed an emergency petition seeking to get the tickets.

The husband was able to get the tickets because he had purchased a ticket package deal for the season with some friends before the separation.

In this case the judge ruled that the husband gets to keep these tickets so long as he took their 12 year old son to the game and the husband was ordered to purchase a ticket for the wife in a comparable seating area.  With tickets going for around $3,000 on StubHub that will be a very expensive game for this couple to attend.

In trying to convince the judge that this was an “emergency” that required immediate court intervention, the wife argued that it would be extremely unlikely that the Cubs will reach the World Series again in her lifetime given that they haven’t been in the Series in 71 years.  The husband’s lawyer relied on the old adage  “Hope Springs Eternal” to argue that there is a greater likelihood that the Cubbies will be back sooner rather than later.

Hilary Goodman, Associate, Family Law.

Professionals, including lawyers, usually choose their profession with a goal in mind. Some want to serve others, some want to make lots of money, some just love the profession and want to join it. Once a profession calls you to it, it can become an obsession.

Law, like many professions, is not easy. It takes a lot of schooling (and corresponding student debt), to obtain the required qualifications. Then it takes a period of internship (in law called ‘articling’). Then finally you can call yourself a lawyer, some 7 years after graduating high school. Then the real work begins: hours of client work, analyzing and problem solving. Many lawyers find themselves working 50 to 60 hours per week all year round. The managing partner of the law firm has to often remind them to record their time as many forget so often to do just that.

Many lawyers though, still have time to devote to their other passions in life – like the opera or hockey – or both even !

The hockey player in me loves the sport so much that I would play it year ‘round if I could. Our firm has a ball hockey team so I am able to play that for a great part of the year. Our team sometimes struggles to win. Being competitive in nature, ball hockey has taught me that I have to learn the art of patience, forgetting the loss and moving on to the next game. The friendship and camaraderie of the team environment is very close to the office environment in which I work day in and day out. But it is entirely different as well – as our focus is on the game and the bounce of the ball – sometimes lucky, sometimes not so lucky.

Opera is also a secret passion of mine. There is nothing like the aria and the performance of those who devote their lives to this wonderful art. It also gives me the chance to get lost in a beautiful story, whether tragic or otherwise – in the timelessness of the plot, which gets re-performed by so many different players, yet remains firm in its message of humanity.

As much as I love working in the family law environment at Barriston, I also know that I need these outside activities to maintain balance and perspective. As Stephen Covey says, “we have to sharpen the saw” by taking time out, by seeing the world outside the practice of law and becoming part of the wonderful world of arts and sports helps me do that. So if you see me in my hockey uniform, please remember that I also am part of a wonderful profession, one which I believe is devoted to serving the public by protecting and advocating for those who need the help.

By Douglas J. Manning, Partner, Certified Specialist in Family Law

There certainly has been a lot of media attention and commentary about the process and evidence in the criminal trial involving media personality Jian Ghomeshi.  But I am not writing about whether the alleged victims were treated fairly or whether the scope of the evidence was too broad or too narrow.  Rather, I was struck by how much evidence there was from Emails and other forms of electronic communications between the alleged victims and the accused and how that evidence was used in the trial.

If I recall correctly, Mr. Ghomeshi’s defense team was able to put their hands on numerous Emails going back over 10 years (as well as more recent emails and texts over the past couple of years between the complaints and Mr. Ghomeshi and others).  I was struck by how effective this bundle of evidence was, at least in the court of public opinion and in the media reports.

I immediately drew parallels in my mind to how relevant and effective this type of evidence has been, and could be, in a family law matter where history and credibility might be at issue.  Let’s consider an example.   In a child custody case, one parent might raised the issue that the other parent has been disinterested in the children for years and has never “pulled their weight” in terms of the day to day tasks that parents are required to perform for their children.  Yet there might be a string of Emails over the years from the complaining parent to the other parent, or other friends or relatives singing the praises of the other parent as a caring, committed, involved and child-focused parent.  Sort of a “parent of the year” characterization.  Or some of the emails may just be coordinating tasks for the children between parents – who is taking the children to appointments, their extracurricular activities, shopping, etc.

If the parent being accused of non-involvement has kept those Emails, or can get those Emails, from the internet provider, then he or she can make good use of this “evidence” to poke holes in the picture the complaining parent is trying to paint and, in doing so, this might have a side-effect of diminishing the credibility of the complaining parent.

Over the past 15 years or so of practicing family law I have developed the habit of advising clients to be very careful of what they put out there on the internet, whether it be Emails, Facebook post, Instagram messages etc.  Once it is “out there”, it is very hard (impossible) to get it back.

A word to the wise.

Evelyn Thompson, Family Law Clerk

 

All of us knows a personality like the one whom Mr. Trump is trying to portray in his run-up to the Presidency. (I am ever hopeful he is not the person who he pretends to be). Experienced family law lawyers have seen many like him. I am also sure that some of us may have experienced adonald-trump.jpgrelationship breakdown with someone like him.

Strong, unyielding, biased and opinionated personalities are not only difficult spouses but they are also difficult personalities for judges, family lawyers (even their own lawyer), family mediators and arbitrators. They won’t do what they are told to do. They won’t “play fair”. They play only by their own rules. They hide assets; intentionally hide income and will do whatever is necessary to avoid giving their partner that to which they are entitled.

The family law Donald is sure about what is right. He will do what he thinks he has to do, come hell or high water. Even Judges don’t have much persuasive power over someone like him. They can make orders, they can award costs, they can order him to pay, but will he? Will he accept accountability for his actions? – Not very likely or very easily.

Personalities like that increase costs for everyone at every level: emotionally, financially and spiritually. A spouse who will stand up to them risks a great deal – they have to retain additional experts at huge expense, they worry about whether or not these experts will actually find any of the missing assets or income, they worry about going bankrupt in the course of following their lawyer’s advice.

Mediators may be asked to become involved in family disputes by the Donalds of the world because they think the confidentiality of the mediation process and the power they hold over their partner will win the day. They are sure that they can browbeat the mediator and the other side into doing what they want. Mediators have to figure that out soon and terminate the mediation as quickly and as safely as possible.

Only Courts have enough authority to deal with the Donald like personality. So we have to leave it to the court to hold someone like him accountable. Indeed, the Donalds of this world can be held accountable, just like an election may hold Donald Trump accountable. A Judge in a family law case does have the power to jail them if they continuously flout court orders. But the court won’t do that on its own. Courts can only act if the weaker party takes a stand and asks the court to hold him accountable.  When you have been beaten down in a spousal relationship, it is very hard to find the emotional and financial resources as well as the courage and the strength to stand up for what is right. When they do, they need a Judge who is willing to listen carefully to what is going on in the case, who can understand the nuances of a relationship involving the Donald like personality and who has the courage to make the Order holding him accountable.

We up in the North Country hope that the American electorate has the willingness to listen carefully to the relationship Mr. Trump wants to establish among the American people, to understand the nuances of what Mr. Trump brings to the stage and then has the courage to stand up and hold him accountable. Thankfully for us northerners, Iowa is a promising start!

By Douglas J. Manning, Partner, Certified Specialist in Family Law

So you want to “win” your child custody case?  Here are some do’s and don’ts:

  1. The most successful party is almost always the more cooperative parent:  Avoid picking fights with, or escalating fights with the other parent.
  2. Basic care for the children should be of high quality:  Make sure your child is returned to the other parent in clean clothes, with good hygiene, etc.
  3. Avoid saying anything negative to the children about the other parent, or the other parent’s friends or family:  Obviously children can be hurt by hearing negative comments about the other parent, whom they love.
  4. The children’s toys and clothes belong to the children, no matter who paid for them:  The child has the right to control their own belongings.  If items don’t get returned from the other parent’s house, this is an issue between the parents, not the child.
  5. If the two parents are together in a public place, the children should be allowed to talk freely to both parents.
  6. Information about the children should pass freely between the parents:  It is in your child’s best interests that both parents know about the child’s health, homework, etc.
  7. Some advanced thought about communication between parents may save a lot of difficulties:  Consider and discuss whether you want to use texts, email, a communication journal, etc.
  8. Do not, under any circumstances, use the child as the messenger.
  9. Children should be free to speak to the absent parent.
  10. Don’t share confidences with the children about your own feelings.

Barrie Hayes, Partner

 

There is no doubt that hiring a lawyer to represent you in Family Court can be a very expensive undertaking.

One alternative to entering into a comprehensive Family Court retainer with a lawyer is to retain the lawyer to provide a specific service or undertaking in relation to your Family Court proceeding.

Limited retainer, or bundled legal services, is an arrangement wherein the client retains a lawyer to assist in a predetermined level of legal services. The legal services could be limited to the preparation of one or several of the necessary family law pleadings (i.e. financial statement, application, affidavit) or involve retaining a lawyer to attend only on specific court appearances.

Our firm, which engages in providing bundled legal services, can provide cost efficiencies by assigning the preparation of pleadings by assigning the preparation of the documents to clerks or paralegals who are supervised by family law lawyers.

A client retaining a lawyer on a bundle legal services basis is usually required to execute a retainer which clearly defines the nature and extent of the legal services the client is retaining the lawyer to provide.

Thomas Dart, Partner, Family Law

We are in the midst of an Ontario election. The campaigns of the three leading parties can only best be described as adversarial. As voters, we should ask: Is the adversarial nature of the campaign helpful to the governance of Ontario? I think most of us would answer most emphatically in the negative.

We have numerous problems in Ontario mostly caused by a declining economy. Is the best method of solving these problems competition between adversaries? What if the three parties got together and collaborated – throwing their resources and obvious intellect at finding a common solution to these problems? What if they involved some grassroots members of our society? In other words, can we change the cultural norm where we automatically think that the adversarial system will lead us to a positive solution?

Similarly, in the family law field, many more professionals who are involved in assisting families with relationship breakdowns are beginning to seriously question the adversarial system as the best method to resolve family law problems. In fact, for many years now, family law lawyers have been using non-adversarial approaches to the resolution of family law disputes. Governments are also beginning to shift family justice resources toward mediation services.

In April, 2013, the National Action Committee on Access to Justice in Civil and Family Matters noted in its report that, its “vision of a family justice system and the recommendations for change” should be based on several guiding principles[1]:

  • minimize conflict – programs services and procedures should be designed to minimize conflict and its negative impact on children.
  • Collaboration – program services and procedures should encourage collaboration and consensual dispute resolution should be at the center of the family justice system provided that judicial intervention is readily available when needed
  • client centered – the family justice system should be designed for and around the needs of the families that use it
  • empowered families – families should, to the extent possible, be empowered to assume responsibility for their own outcomes
  • integrated multidisciplinary services – services to families going through separation and divorce should be coordinated, integrated and multidisciplinary
  • early resolution – information and services should be available early so people can resolve their problems as quickly as possible
  • voice, fairness and safety – people with family justice problems should have the opportunity to be heard and receive the services and processes that are respectful, fair and safe
  • accessible – the family justice system has to be affordable, understandable and timely
  • proportional – processes and services should be proportional to the interests of any child affected, the importance of the issues and the complexity of the case

Family breakdown affects most of us in one way or another over the course of our lifetime. Those of us who have never separated certainly know a good friend or close relative who has experienced a relationship breakdown and we have witnessed firsthand the suffering which it can cause. When we recognize that 40% of marriages break down, we can assume that probably another 30% of the population experiences the repercussions. Grandparents lose rights to see their grandchildren, for example. The divorce breakdown rate does not take into account the number of common law relationships that fail as there is no means to track those. So the information we have regarding the percentage of families who actually experience family breakdown is probably low. We all know as well that children suffer the most when their parents separate.  Family breakdown impacts so many other aspects of our society – it can create physical and mental health issues, job loss, engender criminal conduct and so on.

There are several groups, consisting of lawyers, mental health professionals and judges, at work trying to convince government that these issues should be an essential part of the current Ontario election platforms of all parties. One group wrote a letter to all three political parties asking them to put this on their agenda.  Other groups are meeting with government and among themselves to strategize implementation of the reforms. The Liberal party has at least put the issue on their platform – but it is not getting much publicity. It was not even mentioned in the recent debate. In any case, the parties should not make this yet another adversarial issue – all three parties should adopt this platform – no more studies are needed – action is required now.

A collaborative effort for reform among the leaders of our Province would signal to our families who are suffering that they can set aside adversarial differences in the interests of improving their lives. That signal would perhaps begin that major shift in culture which our National Action Committee has so strongly endorsed. Who will speak for our families? Who will help them? Where is our leadership?

 


[1] Meaningful Change, Beyond Wise Words, April 2013, pp. 3-4