Family Law

FAMILY | When is Shared Parenting Appropriate?

September 1, 2020 By Sarah Dargatz

Photo by Markus Winkler from Pexels

When the parents of a child separate, they must make decisions about where the child should live on a day-to-day basis. Many parents prefer some form of “shared parenting” which usually means that each parent has day-to-day care of the child at least 40% of the time. However, shared parenting is not right for all families. In some cases, it’s best for one parent to care for the child more of the time.

Under Canadian family law, decisions about a parenting schedule are based on what is in the best interests of the child. The new Divorce Act, likely coming into force in March 2021, will include a list of factors that judges must consider when determining what is in a child’s best interests. Many provincial family laws, such as Alberta’s Family Law Act, already include a list of factors.

Factors that a judge must consider when determining what is in a child’s best interests include:

a child’s needs, including their need for stability
a child’s nature and strength of relationship with each parent and other significant people
the history of care
a parent’s plans for the future
the child’s view, where they can be ascertained, and where appropriate to consider given the child’s age and maturity
the child’s cultural and religious upbringing
a parent’s willingness and ability to support the child’s relationship with the other parent
a parent’s willingness and ability to communicate and cooperate with the other parent about the child and
any family violence.

What the legislation does not do, however, is dictate how a judge will weigh each of these factors. The law does not say what outcome is appropriate given a certain factor or constellation of factors.

Under Canadian family law, decisions about a parenting schedule are based on what is in the best interests of the child. Judges consider the factors of a particular case and what outcome the judge considers to be in the child’s best interests, based on those factors. These decisions published by the court establish “caselaw” and “precedent” that other judges apply to subsequent cases.

Recently, Justice Lema of the Court of Queen’s Bench of Alberta (in CAS v NPC, 2020 ABQB 421) reviewed the Alberta caselaw regarding factors that tended to support an order of shared parenting and those factors that tended to demonstrate when shared parenting would not be in a child’s best interests. His survey of factors is helpful. The case is worth a read for those struggling with this question.

Some of the factors that judges have determined support shared parenting include:

both parties being capable and engaged parents
good communication between the parents
each parent loving the child and “no evidence that [the child] will not be properly cared for with all their needs being met in the care of each parent”
adequate proposed work and child-care arrangements from the parents, even if one parent’s plan is less developed than the other’s
a history of shared parenting
parents having different and important interests and capabilities to pass on to their children
shared parenting would enhancing a child’s contact with a parent’s cultural or linguistic background
children have spent significant time with, and have strong attachments to, both parents
children prefer shared parenting
increased contact with half-siblings and other family members
practical considerations such as manageable driving time between parental residences and school and the availability of child care and
where there is a parenting assessment from a qualified psychologist recommending shared parenting.

The law does not say what outcome is appropriate given a certain factor or constellation of factors.Factors signaling against shared parenting include:

parents’ inabilities to put their children’s interests ahead of their own to such a degree that regular cooperation and coordination in scheduling is impossible
the parties being and having been in “substantial conflict” and lacking a “genuine willingness to work together to ensure the success of a shared-parenting arrangement”
where separation of the child from their primary caregiver, particularly at a young age, may be emotionally and developmentally disruptive for the child
one parent’s possible serious alcohol dependency
medical evidence suggesting no major changes to routines of seriously disabled child
a parent’s frequent violence and angry outbursts against child
child at risk of serious psychological problems
one parent’s residential and new-relationships instability
the absence of definite plans for where the parent would live with the child or where they would go to school
the opposed-to-shared-parenting opinions of the child, ascertained by a parenting expert
one parent’s move making it “impossible to continue with the alternating week parenting schedule” and
practical considerations such as the distance between parents’ residences making shared parenting impractical.

Justice Lema notes that determining what is in a child’s best interests is not a “box-checking exercise”. He writes:

Determining a child’s best interests is not simply a matter of scoring each parent on a generic list of factors. Each case must be decided on the evidence presented. The listed factors [in one case] merely serve as indicia of the best interests of the child. By their very nature, custody and access applications are fact-specific. The listed factors may, therefore, expand, contract, or vary, depending on the circumstances of the particular case as manifested by the totality of the evidence. Courts must approach each decision with great care and caution.

FAMILY | What COVID-19 Caselaw Tells Us about Parenting

July 2, 2020 By Sarah Dargatz

Photo from Pexels

This column is coming out during the COVID-19 pandemic. Health authorities across Canada, and the world, have issued protocols for limiting the spread of the virus. Many family courts are only hearing “urgent” matters.

The court has heard cases during this time that speak to a specific set of circumstances in our history. However, the court’s decisions also speak to principles that parents, and legal professionals, can apply at any time.

The Cases

One of the first parenting cases to come out was Ribeiro v Wright, 2020 ONSC 1829. Justice Pazaratz of the Superior Court of Justice in Hamilton, Ontario, heard an application shortly after the government implemented pandemic protocols. The mother wanted to suspend all of the father’s court-ordered parenting time due to the pandemic.

Justice Pazaratz spoke of the balancing act that parents and courts must achieve. On the one hand, we must follow and respect current parenting orders based on the presumption that those orders reflect the child’s best interests. And on the other hand, we must respect the health directives during an extraordinary time. In other words, parents and courts have to balance competing “best interests”: having a relationship with both parents vs. preventing the spread of a deadly disease. This balancing act will not be the same for every family. The court will deal with each family Parents must make good faith efforts to communicate.on a case-by-case basis. The court noted that the existence of the pandemic and the resulting change to our day-to-day routines does not, in and of itself, necessarily justify changing the parenting schedule. However, there may be some cases where parents have to forego time with their children. For example, where a parent must quarantine, where family members have a heightened risk or where a parent is not complying with health protocols. Parents must make specific and realistic time-sharing proposals to address all COVID-19 considerations, with their primary focus being the children.

In Le v Norris, 2020 ONSC 1932, Justice Conlan of the Superior Court of Justice in Milton, Ontario heard an application from a father who was being denied his court-ordered parenting time by the mother. Justice Conlan noted that “responsible adherence” to the existing court order could address the mother’s concerns related to COVID-19. This means “being practical and having some basic common sense”. The parents could follow the order while still following the protocols set out by the health authorities.

In Skuce v Skuce, 2020 ONSC 1881, Justice Doyle of the Superior Court of Justice in Ottawa, Ontario heard another application by a father who was being denied his in-person parenting time set out in Minutes of Settlement signed only a couple weeks before. By unilaterally cutting off the father’s visits, the mother had engaged in what courts often refer to as a “self-help remedy”. Justice Doyle noted:

The Court cannot be seen to condone this type of behaviour. Without citizens obeying existing court orders, the whole justice system would be turned over on its head.

Parents should follow the orders and agreements already in place, to the extent possible.The court went on to note: “children need and deserve stability, comfort, and predictability in their routine. Despite the current world events, this can be accomplished.” Children already cannot see their friends, teachers and extended families. They should see still see their parents, unless for their safety they should not.

In SR v MG, 2020 BCPC 57, Judge Bond of the Provincial Court in Vancouver, British Columbia heard an application from a mother seeking the return of the children from their father. The father was withholding the children because the mother works as a Licensed Practical Nurse. The mother was taking every recommended precaution. Judge Bond noted that the following factors are relevant:

whether or not the child, the parents or other members of their households are at an elevated risk;
the parties risk of exposure and the steps they are taking to mitigate that risk;
the usual factors we consider when determining what is in the child’s best interests, such as their need for stability, their relationships with both parents, their history of care, etc.; and
society’s need to maintain access to services such as health care.

Judge Bond found that the mother was doing what she could to mitigate her risk and following the recommended precautions. Therefore, she should still have parenting time.

In TC v RE, 2020 BCPC 65, Judge Bond heard another application where a father applied to reinstate and increase his parenting time. The father would not communicate with the mother about the steps he was taking to comply with the recommended health protocols until they were in court. Judge Bond noted that:

[I]t is incredibly important that separated parents communicate effectively in co-parenting their children. That commination should not focus on the rights of the parents to see their children, but rather on the rights of their children to have parents that can share important information about the children’s safety and welfare respectfully and effectively.

The court was “appalled” that the father had not made full disclosure about his intentions and behaviours to the mother until he had brought her to court.

Courts will not condone self-help remedies except in exceptional circumstances.Hundreds of other cases have followed the principles set out in these cases, including in my home province of Alberta. In SAS v LMS, 2020 ABQB 287, Justice Graesser of the Court of Queen’s Bench in Edmonton followed the reasoning in Ribeiro v Wright when considering a father’s application to reinstate his parenting time. The mother had cut if off because she believed he was not following the recommended precautions. The court balanced the need for the children’s safety versus the need for them to see both parents. The court also discouraged self-help remedies. Justice Graesser provided guidelines to the parents and gave them time to work out an agreement, which they were able to do.

Justice Graesser also warns parents not to look for “loopholes” in the guidelines issued by the public health authorities. In this case, the father tried to avoid physical distancing from others by invoking the concept of “cohorts”. The court wrote:

Looking for “loopholes” or exceptions is too frequently an attempt to justify an unwillingness to comply, or an attitude of dismissiveness towards the risks acknowledged by medical professionals. Courts should be slow to permit anything that puts a person or the community in an unreasonable risk.

The Take-aways

These cases, and the many other cases issued during the COVID-19 pandemic, give us principles that we can apply at any time:

Parents must remain focused on their children and work to find realistic solutions. Parents need to be practical and exercise common sense.
Staying healthy is important. The court will defer to public health authorities and expect strict compliance with health orders. It is also important for children to have a relationship with both parents. Parents should mitigate risks.
Parents must make good faith efforts to communicate.
Parents should do what they can cooperate and stay out of court.
Parents should follow the orders and agreements already in place, to the extent possible. Courts will not condone self-help remedies except in exceptional circumstances.
Every family is unique and must be assessed on the facts of their particular situation.

FAMILY | The Legal Status of the Spousal Support Advisory Guidelines

March 3, 2020 By Sarah Dargatz

Photo from Pexels

The Divorce Act sets out the factors that a judge considers when ordering one ex-partner to pay spousal support (also knows as “partner support” or “spousal maintenance”) to the other ex-partner. The factors in provincial family law legislation that applies to unmarried couples, such as Alberta’s Family Law Act, often mirror the Divorce Act.

Before spousal support is ordered, one ex-partner must show that they are entitled to spousal support. Entitlement is a big topic that we might cover in another issue. You can find basic information on entitlement in CPLEA’s Financial Support booklet.

If one ex-partner is entitled to spousal support, the next question is how much should they receive (the “quantum”) and for how long (the “duration”). Lawyers, judges and ex-partners often use the Spousal Support Advisory Guidelines (the “SSAGs”) to help determine the quantum and duration of spousal support.

Two law professors, Carol Rogerson and Rollie Thompson, developed the SSAGs based on how courts were practically applying the Divorce Act factors. The Federal Department of Justice published the SSAGs. The SSAGs include a set of calculations used to determine quantum and duration of spousal support as well as a User Guide to provide practical assistance in using the calculations. The SSAGs provide consistency and predictability to spousal support awards. They focus on income sharing rather than analyzing each partner’s budgets. The Federal Department of Justice released a draft proposal in 2005 before releasing a “final” version in 2008. The User Guide was updated in 2010 and 2016.

There is good reason to believe that the Court’s comments in Wild will lead to greater confidence in the use of the SSAGs in Alberta.Unlike the Federal Child Support Guidelines, the SSAGs are truly guidelines. They are not law. They are not part of any piece of legislation or regulation. So what are they? Does a judge need to follow them?

When making a decision, a judge must follow the applicable legislation and regulations. Judges must also consider the decisions that other judges have made, particularly the decisions of judges at higher levels of court. This is what we call “precedent” or “caselaw”. Judges are also welcome to consider other helpful resources, such as textbooks written by respected legal academics. However, these other resources should not override the judge’s discretion and application of the legislation and caselaw.

From early on, appeal courts across Canada referred to the SSAGs as a “useful tool”, just like a well-researched textbook. However, there was inconsistency on what weight courts would give to the SSAGs. Appeal courts across Canada had to decide if it was an error for a judge to put too much, or too little, weight on SSAGs calculations.

When the SSAGs were still only in draft form, the British Columbia Court of Appeal released its decision in Redpath v. Redpath, 2006 BCCA 338:

Now that [the SSAGs] are available to provide what is effectively a “range” within which the awards in most cases of this kind should fall, it may be that if a particular award is substantially lower or higher than the range and there are no exceptional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate intervention.

In other words, if a judge did not use the SSAGs, or put too little weight on them, it could give rise to an appealable error. Given this decision, the SSAGs are used consistently in British Columbia as a starting point to determine the quantum and duration of spousal support.

All cases point out that the SSAGs calculations should not be used blindly without consideration for what makes a particular family unique.On the other hand, in the early days of the SSAGs, the Alberta Court of Appeal said that a judge was only required to consider the factors set out in the Divorce Act (see Sawatzky v. Sawatzky, 2008 ABCA 355 or Taylor v. Taylor, 2009 ABCA 354). The Court said judges should use the SSAGs as merely guidelines, a “starting point” or a “cross-check”, and such use should not “fetter a judge’s discretion”. The Court noted that “there remains more than one route available to trial judges in arriving at an appropriate result.” In Alberta, lawyers and litigants did not have confidence that their assigned judge would consider SSAG calculations. It was much more difficult to predict spousal support outcomes.

This is not to say that the Alberta Court of Appeal rejected the SSAGs altogether. Rather, they used the SSAGs as that “useful tool” and a “cross-check” to measure the appropriateness of spousal support awards. But using this tool was not considered a required starting point.

However, in January 2019 the Alberta Court of Appeal wrote that the SSAGs “have developed a certain strength in this jurisdiction over a period of time” (in Thompson v. Thompson, 2019 ABCA 7). And then, in April 2019, the Court went a step further and encouraged lawyers to provide SSAG calculations to judges and to think carefully about the appropriate inputs to the calculations and the relevant considerations under the Revised User Guide (in Wild v. Wild, 2019 ABCA 159). And, for the first time, the Alberta Court of Appeal affirmed the decision of the British Columbia Court of Appeal in Redpath. The Court said that a judge not explaining why their award falls outside of the SSAGs could be a basis for appellate review.

Lawyers, judges and ex-partners often use the Spousal Support Advisory Guidelines (the “SSAGs”) to help determine the quantum and duration of spousal support.Since the release of the Wild decision, several subsequent Alberta Court of Appeal decisions have cited it. There is good reason to believe that the Court’s comments in Wild will lead to greater confidence in the use of the SSAGs in Alberta. Though the SSAGs are still not law, they are something more than a respected textbook. They are a required starting point.

All cases point out that the SSAGs calculations should not be used blindly without consideration for what makes a particular family unique. The calculations should not used without reference to the considerations in the Revised User Guide. The calculations provide a range of amounts and durations. Consideration must be made for which numbers within that range are most appropriate.

Most people want to avoid court and settle instead. However, an ex-partner needs to know what the alternative to settlement (i.e. going to court) might look like. If it is difficult for a lawyer to predict what a judge would order for spousal support, it is difficult to advise their clients about how to settle. If we can have confidence that the court will start with the SSAGs, it is much easier to predict a likely outcome and therefore, much easier to reach an agreement outside of court.

FAMILY | DBS v SRG: Retroactive child support claims

January 7, 2020 By John-Paul Boyd

20/20: Looking back over the last 20 years

Photo from Pexels

I was not short of choices when LawNow asked me to write about one of the most important family law cases in the last twenty years. After consulting with Sarah Dargatz, my fellow columnist on family law issues, I decided to talk about DBS v SRG, a critical 2006 decision of the Supreme Court of Canada on the law relating to retroactive child support claims.

While most court orders take effect – begin to work, that is – only at the moment a judge makes them, a retroactive order is meant to take effect at some point in the past. Child support is money paid after separation by one parent to the other as a contribution toward the day-to-day costs of raising a child. A retroactive child support claim, therefore, is an application seeking an order for the payment of child support starting at a date earlier than the date the order is made, sometimes long before the date the application for support is delivered.

Before DBS, the law in this area had become confused, with some judges saying one thing and others saying another. This made it very hard to predict the outcome of an application for retroactive child support. Two of the key functions the Supreme Court of Canada serves is correcting the law when conflicting lines of cases emerge and clarifying the legal tests that apply to a problem. These functions are the real importance of DBS.

Personally, I really enjoy decisions like DBS because they give the court the important opportunity to talk about the principles and theories that underlie the framework of family law in Canada. To really understand family law, you need to understand its philosophical foundations. Why and when can retroactive child support orders be made? That is the question DBS answers.

In fact, DBS wasn’t just one case but four. It, and the other three – LJW v TAR, Henry v Henry and Hiemstra v Hiemstra – came from the Alberta Court of Appeal. All concerned claims for retroactive child support, some of which were successful at trial, others not. Some cases involved unmarried parents who had applied for support under provincial law, some were married and applied under the federal Divorce Act. In all four cases, the parent receiving child support had failed to apply to increase the amount of child support payable as quickly as they should have. This meant their children went without the level of support to which they were entitled as a result. The different circumstances behind each of the four cases allowed the Supreme Court of Canada to develop a single analysis of retroactive child support and play those principles out against the facts of each case.

Principles of child support

A retroactive child support claim … is an application seeking an order for the payment of child support starting at a date earlier than the date the order is made …The Court’s reasoning, in the majority decision written by Justice Bastarache, is surprisingly easy to follow. First, Justice Bastarache said that the mere fact of being a parent creates both moral and legal obligations. The legal obligations include financially supporting the child, a duty that arises when the child is born. Secondly, the right to child support belongs to the child, not to the parent who receives it. This right survives the breakdown of the relationship between the child’s parents.

Thirdly, since 1997, the calculation of the amount of child support has been set by the Child Support Guidelines. This regulation fixes the amount payable according to the income of the person paying support and the number of children entitled to support. The Guideline shifted the way we look at child support, from the obligation of both parents to cover the children’s expenses to the income of the parent paying support, the payor. In most cases, the actual cost of the children’s expenses is irrelevant, as is the income of the parent receiving support, the recipient.

Fourthly, and most importantly, because the Guidelines link the amount of child support payable to the income of the payor, the amount of support owing changes as the payor’s income changes. The court can’t make orders about child support until someone applies for a support order. However, where a duty to pay child support wasn’t met, or fully met, before the application, the court may decide to enforce that unmet obligation through a retroactive support order.

When applications are made

Parents can apply for retroactive child support orders in three different circumstances:

when there is an existing order;
when there is an existing agreement; and,
when there is neither.

Each situation has its own considerations.

When there is already an order in place, payors need to know that they are meeting their duty by paying the amount of support the order says needs to be paid. However, Justice Bastarache, who wrote the majority decision, said that “parents should not have the impression that child support orders are set in stone.” Parents must understand that support orders are “based upon a specific snapshot of circumstances which existed at the time the order was made.” Those circumstances may change down the road. Retroactive support orders address deficiencies in the original order that arose as the payor’s income changed and the amount of support being paid didn’t.

… the right to child support belongs to the child, not to the parent who receives it.When there is an agreement in place, things are a bit different. Justice Bastarache said the courts should generally respect the parents’ right to settle their legal issues. However, payors cannot have the same certainty that they are meeting their duty by paying the amount the agreement says needs to be paid. “A payor parent who adheres to a separation agreement that has not been endorsed by a court should not have the same expectation” that they are fulfilling their legal obligations as does “a payor parent acting pursuant to a court order.”

When there is no order and no agreement, however, the court is much more likely to make a retroactive order. Justice Bastarache said that it is “unreasonable for the non-custodial parent to believe (s)he was acquitting him/herself of his/her obligations towards his/her children” in not paying, or in underpaying, child support.

Factors the court considers

Justice Bastarache wrote that there are four factors a court should consider when asked to make a retroactive child support order:

the recipient’s reasons for not applying for the order sooner (Were they bullied by the payor? Did the payor refuse to provide financial disclosure? Or, did they know more support should be paid but just never bothered to ask for it?);
how the payor handled their obligation to support the children;
whether the children went without as a result of child support not being paid, or being underpaid (Did the children suffer because not enough support was paid? Were there things the children needed but the recipient couldn’t afford? Or, did the children have a good standard of living and want for nothing?); and
the hardship to the payor if a retroactive order is made (Will the payor go into debt if the order is made? Or, can the payor actually afford to pay the amount owing?).

Of these four factors, probably the most important is the payor’s behaviour with respect to their support obligation, particularly if the payor’s behaviour was “blameworthy.” Justice Bastarache said that blameworthy behaviour is “anything that privileges the payor parent’s own interests” over “the children’s right to an appropriate amount of support.” Examples of blameworthy behaviour include the payor concealing changes in their income, intimidating the recipient into not applying for child support, and misleading the recipient into thinking they are meeting their obligation. However, Justice Bastarache also wrote that:

No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct.

When retroactive orders can start

The last and most important part of DBS is about how far back a retroactive child support order can go. Justice Bastarache said that the usual starting date should be the date the payor has “effective notice” of the recipient’s intention to seek child support or adjust the amount of support being paid. Effective notice is “any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated … all that is required is that the topic be broached.” Once notice is given, the payor can no longer assume that the existing situation is fair.

… because the Guidelines link the amount of child support payable to the income of the payor, the amount of support owing changes as the payor’s income changes.Because it can take so long to get from giving “effective notice” to a hearing in court, Justice Bastarache said that there should generally be a limit of three years from the date the recipient delivered the actual application to the payor. However, where the payor’s conduct was blameworthy, the court can decide to go back as far as the date when the amount of child support became inadequate. Three years is a long time, but when the payor has misbehaved, the court can make the order start the moment that the amount of child support being paid became less than what the payor should have paid.

Conclusion

If there is a lesson to be drawn from DBS for payors, it is this. The Child Support Guidelines allow recipients to ask for your income information once every year. Whether the recipient asks for this information or not, you should provide it. You should also voluntarily adjust the amount you’re paying to match any increases in your income. If you don’t do these things, you risk the court deciding that your conduct has been blameworthy and making a retroactive award.

The lessons for recipients are also important. Ask the payor for the financial information you are entitled to once each year. If the amount being paid is less than what should be paid, bring it up with the payor. Don’t drag your feet. Keep receipts for what you’re spending on the children, and make a record of anything that you can’t buy for the kids when you suspect the payor is paying less child support than they should.

Alternatives to Court: Parenting Coordination

July 4, 2019 By John-Paul Boyd

This is the last column in LawNow’s series on resolving family law disputes out of court. The other columns in this series include Sarah Dargatz’s articles on collaborative negotiation and mediation, and my article on arbitration. In this column, I’m going to talk about parenting coordination. This is a child-centred process that combines elements of both mediation and arbitration and is used to resolve disagreements between separated parents about their children.

Parenting coordination was developed in California in the 1980s in response to certain family law cases that seemed to be in court all the time, even after they had gone through trial. The people involved in these cases were making applications to adjust the parenting arrangements for their children several times each year, at a huge expense to them and a huge expense to the court. A number of people working in the justice system came up with the idea of taking these conflicts out of the court system and having them resolved privately by a lawyer or a mental health professional, like a social worker or a psychologist, working directly with the parents.

The idea turned out to be a success, and parenting coordination began to spread through the United States and Canada. Today, parenting coordination is very well established in this country. Groups of professionals providing parenting coordination services exist in British Columbia, Alberta, Ontario and Nova Scotia.

One of the key goals of parenting coordination is to help parents get a final resolution to parenting problems as they come up, and save the time, expense and anxiety involved in going back to court. Parenting coordination is for people who already have a parenting plan in place, whether the parenting plan is in the form of a separation agreement or a court order. The parenting coordinator’s basic job is to help people implement their parenting plan and resolve disagreements about their parenting plan as they come up.

Parenting coordination does not help people with temporary, or “interim,” parenting plans because of the potential for the work of the parenting coordinator to interfere with the decisions the court may make, and for the decisions of the court to interfere with the work of the parenting coordinator. Parenting coordination is independent of court processes and helps with final parenting plans only.

Parenting coordinators can be lawyers who have special training in certain aspects of psychology, including communication skills, childhood developmental psychology and high-conflict personalities. They can also be mental health professionals who have special training in certain aspects of the law, including family law, mediation and arbitration. The type of professional who will work best for a family depends on the sort of disagreements the parents usually have, and the reasons behind those disagreements.

A parenting coordinator can be hired as a result of an agreement between the parents or because of a court order that the parents agree to, called a consent order. In British Columbia, the court can order people to hire a parenting coordinator whether they agree to use the parenting coordinator or not.

The parenting coordinator will prepare a participation agreement that outlines:

the parenting coordinator’s rates;
the responsibilities of the parents;
the responsibilities of the parenting coordinator; and
the parenting coordination process.

Most importantly, the agreement describes the scope of the parenting coordinator’s authority. Parenting coordinators are not able to help with issues about child support, spousal support or the division of property and debt. They also cannot make fundamental changes to children’s living arrangements, like changing the home where the child usually lives or making permanent changes in children’s parenting schedules.

Parenting coordinators can help with common issues like:

deciding where the children go to school;
deciding in which activities the children will participate;
making temporary adjustments to parenting schedules;
addressing communication problems between the parents or between a parent and a child;
dealing with problems about the children’s health care; and
dealing with problems about the exchange of the children between the parents and parents who are late for or miss their time with the children.

After the parents and the parenting coordinator sign the participation agreement, either parent can bring a problem to the parenting coordinator. The parenting coordinator will first work with the parents to try to solve the problem with their agreement, using a process that’s a lot like mediation. If the parents can’t reach agreement, however, the parenting coordinator has the authority to make a decision resolving the problem, using a process that’s a lot like arbitration. Parenting coordinators usually also have the authority to make decisions when a problem is urgent and there isn’t the time to work with the parents to find a solution to the problem by agreement.

Parenting coordination is for people who already have a parenting plan in place, whether the parenting plan is in the form of a separation agreement or a court order. Parenting coordinators’ ability to make decisions is especially important. If a parenting coordinator doesn’t have the authority to make a decision when the parents cannot agree, the process isn’t parenting coordination. One of the key goals of parenting coordination is to help parents get a final resolution to parenting problems as they come up, and save the time, expense and anxiety involved in going back to court. If the parents can’t reach an agreement and the professional helping the parents resolve disagreements about their parenting plan can’t or won’t make decisions, then the professional is a mediator, not a parenting coordinator.

Although parents have to pay for their parenting coordinator’s services, parenting coordination done right is almost always cheaper than making applications to court. It also resolves disagreements a lot more quickly than is normally possible in court, which can be very important when critical parenting decisions need to be made on short deadlines.

Parenting coordinators do more than just help people implement their parenting plan and resolve disagreements about their parenting plan. They also work with each parent to improve their communication skills, learn to put the best interests of their children first, and develop the necessary skills to resolve disagreements on their own. As a parenting coordinator, I always see my job as helping people to learn to work together so that they no longer need me! Yes, I resolve parenting problems, but what I really want to do is to get my clients to the point where they can manage future problems without my help.

To learn more about parenting coordination, visit the website of the Association of Family and Conciliation Courts, an international organization based in the United States that has been at the forefront of developing parenting coordination. You can also read some of the research on parenting coordination practice in Canada conducted by the Canadian Research Institute for Law and the Family.

Alternatives to Court: Mediation

May 3, 2019 By Sarah Dargatz

In the first column in this series, John-Paul Boyd introduced basic alternatives to resolving family law disputes in court. In the second column, I wrote about the Collaborative process. In the last issue, John-Paul Boyd explained arbitration. In this column, I’m going to talk about mediation.

Mediation is a process where you and the other person involved in a dispute meet with a neutral third-party, a mediator, who assists you to reach an agreement. The mediator’s role is to help you and the other person communicate civilly, express ideas in different ways, stay on track, and explore and consider options. You can think of a mediator as a guide, a translator, a coach, or a referee. The goal of a mediation is for you and the other person to reach an agreement. A mediator is not empowered to impose a solution on you and the other person. You are the decision-makers and responsible for the outcome.

Mediators can take a variety of approaches:

In facilitative mediation, the mediator makes informed suggestions to you and the other person to help you problem solve and assess various proposals. The mediator will focus on maintaining a fair process so you and the other person can communicate effectively.
In evaluative mediation, the mediator can give their opinion to you and other person about your positions. If the mediator is a lawyer, they might tell you if your suggestion does not align with the current law and predict the outcome if you took your case to court.
In transformative mediation, the mediator attempts to help you and other person find new ways of communicating and to develop skills to work together. The mediator helps you and the other person transform your interactions from destructive to constructive.

Mediators can have a variety of backgrounds. Many come from a social work or counselling background; others are lawyers. Each background brings a different skill set and you may want to give this some consideration when choosing a mediator. For example, if you are trying to reach a resolution about what kind of parenting schedule is best for your children, you might prefer someone who has training in child development or interpersonal relationships because the law is not complicated in this area; it is to do what is in your child’s best interests. However, if you are trying to sort out an issue that does involve more of a legal analysis, such as how to divide matrimonial property, it may be helpful to have a mediator with a legal background who understands the law in this area.

The mediator’s role is to help you and the other person communicate civilly, express ideas in different ways, stay on track, and explore and consider options. You can think of a mediator as a guide, a translator, a coach, or a referee. Usually mediation is “closed” and done on a “without prejudice” basis, meaning that whatever is discussed in mediation cannot be raised in court. This allows for you and the other person to explore ideas and suggest compromises without being held to them if you do not reach an agreement. Your mediator should confirm whether or not you are proceeding on this basis at the start of your meeting.

Generally, mediators will not have private discussions with you or the other person. This ensures that the process is fair and transparent. However, sometimes it may be beneficial to take time away from the joint session to meet with the mediator to clarify an issue, reflect on the consequences of a decision, or vent your emotions. In this case, the mediator might decide to “caucus”, which means to have a private confidential meeting with you or with the other person. You might be concerned that caucusing could be used to sway a mediator to the other person’s “side”. However, since a mediator cannot make decisions for you, there is little advantage to having a mediator on “your side” or risk that they are on the other person’s side. The only person you have to convince is the other person in your dispute. Caucusing is simply one tool to help move forward. If you have concerns with caucusing, you can raise them and discuss the benefits or risks of using this tool.

As John-Paul Boyd noted in the last issue’s column, mediation can be combined with arbitration. An arbitrator can start by mediating, but if you cannot reach an agreement, they can make a final and binding decision that you both must follow. You and other person would have to agree to this process in advance and set out the “rules” that the mediation-arbitration process (sometimes called “med-arb”) would follow.

Mediation is usually a voluntary process. However, many courts require that you and the other person attempt at least one alternative to court before you can bring a court application or schedule a trial. So, you might try mediation to satisfy this requirement, without being fully invested in the process. This is missed opportunity. Reaching an agreement via mediation would not only save you time and money, but as with any alternative to court, it also usually leads to better outcomes. When you reach an agreement that works for you, and for your children, rather than leaving it to a stranger (a judge), it is much more likely to meet your needs and other interests. If you and the other person are the parents of children, it is important to preserve your relationship and learn how to communicate in the long term.

There are some situations that are not recommended for mediation. Family violence, substance abuse, poor mental health, or limited cognitive functioning will limit how successful mediation can be. In some cases, mediation may not be safe. Mediators are trained to screen clients to ensure that mediation is appropriate.

In Alberta, free mediation for parenting matters is available through the provincial government so long as one of the people earns less than $40,000 a year. If you do not qualify for this, or have other issues to address, you can hire a private mediator. Anyone can present themselves as a mediator. When choosing one, you may want to ask questions about their background and training. The Alberta Family Mediation Society and the ADR Institute of Alberta both provide a list of their members who have a minimum level of education and designations for those with more experience.

Alternatives to Court: Arbitration

March 5, 2019 By John-Paul Boyd

In our first column in this series, I introduced the basic alternatives to resolving family law disputes in court – negotiation, mediation and arbitration – and talked about some of the surprising research on lawyers’ views about litigation. In the second column, Sarah Dargatz wrote about collaborative negotiation, a cooperative kind of negotiation in which the lawyers and their clients work together to reach a settlement resolving a dispute. In this column, I’m going to talk about arbitration.

Arbitration and litigation

Arbitration looks a lot like litigation at first glance. Whether you’re going to court or using arbitration, a neutral third-party –a judge in litigation and an arbitrator in arbitration – makes a final decision that binds the parties involved in the family law dispute. Both processes are adversarial, meaning that the parties are not expected to cooperate with each other or reach a settlement. Both processes follow the principles of fundamental justice, which is a fancy way of saying that they are designed to be fair to both parties and that both parties have the right to make their case, and reply to the case against them. But that’s where the similarities end.

In my view, the most important benefits of arbitration are its privacy, being able to hire a decision-maker who is an expert in the subject of your dispute and the flexibility of the rules that guide the process. Litigation is a public process. Hearings and trials happen in an open courtroom, and in many provinces and territories, anyone walking in off the street can review court files. Judges’ decisions can be found online, although some jurisdictions try to anonymize the names of the parties.

Each dispute is resolved by applying a blend of statute law and case law, and according to the rules of court. Hearings and trials are scheduled when there’s room in the court calendar, which might be several months for hearings and several years for trials. The evidence presented must comply with the statute and common law rules of evidence. The judges who deal with hearings and trials are randomly selected and may or may not be experts in family law.

Arbitration, on the other hand, is a private process. Hearings occur behind closed doors, no one has access to the arbitrator’s files and the parties agree to keep everything that happens confidential. Arbitrators distribute their decisions to the parties only and never post them online.

Disputes may be resolved by applying the law or by applying another standard, like fairness, and the parties pick the rules for themselves. Hearings can be scheduled as soon as the arbitrator and everyone else is available. The rules and legislation about evidence do not govern arbitrations. The witness’ oath or affirmation is not necessary and evidence will usually be allowed if the information is relevant to an issue in the dispute.

Starting arbitration

It’s easy to get into arbitration. First, you need to talk to your ex and make sure that he or she is willing to try it. Second, you need to pick an arbitrator. Doing an Internet search for “family law arbitrator” and the name of your town will give you some names to choose from. Contact two or three of the arbitrators and tell them about your situation without getting into too much detail, and ask about their experience with family law disputes. Be sure to ask about their fees and availability.

Once you and your ex have found someone you’re interested in working with, your arbitrator will send you a participation agreement. This is a contract that talks about how the arbitration will work, your role and your arbitrator’s role in the arbitration process, and the arbitrator’s payment expectations.

After you’ve signed the participation agreement, (some arbitrators will ask you to get legal advice about the meaning and consequences of the agreement), the arbitrator will schedule a date for an initial planning conference and perhaps a date for the arbitration hearing itself. The conference is the arbitrator’s opportunity to get a more detailed understanding of legal issues in your family law dispute, set dates for the exchange of information and documents, and work with you to select the rules for how your arbitration will run.

Designing the rules that will govern your arbitration

In my view, the most important benefits of arbitration are its privacy, being able to hire a decision-maker who is an expert in the subject of your dispute and the flexibility of the rules that guide the process. The speed of arbitration is also important, since getting a decision quickly almost always makes arbitration cheaper than litigation. I’m going to focus on the rules of arbitration, however, because the many ways they can be changed are often overlooked and some changes can dramatically increase the efficiency of arbitration while dramatically reducing its cost.

Best of all, in arbitration the parties can choose their arbitrator, which means that they can pick someone who isn’t just an expert in family law but is an expert in the specific family law problem that’s at the heart of their dispute. In litigation, the rules of court that apply to family law disputes are the same rules that apply to all civil disputes, from motor vehicle accidents to wrongful dismissals. Even in those jurisdictions that have separate set of rules for family law disputes, like British Columbia, or a special rule for family law disputes, like Alberta, the difference between rules for family law disputes and the ordinary rules for civil disputes can be hard to spot.

In arbitration, the parties can design the process to suit their issues, needs and finances. While litigation processes provide a one-size-fits-all service, almost every aspect of the arbitration process can be tailored to the specific needs of the specific people involved in a specific dispute, giving those individuals the opportunity to create a process that is genuinely proportionate to the complexity, significance and value of their issues.

This is especially important because family law disputes are fundamentally different than other kinds of civil disputes. Most civil disputes involve people who may have no relationship with each other except that which gave rise to the dispute. They concern events that ended long before trial and tend to involve concrete evidentiary questions that can be measured, like the length of the skid marks and the condition of the road. They determine responsibility, and, where responsibility is found, the amount of money necessary to restore the plaintiff to the position she would have been in but for the bad act.

Family law disputes, on the other hand, concern family members whose relationship with one another will continue into the indefinite future. They concern events taking place over a lengthy span of time continuing through trial. They involve difficult, ambiguous evidentiary questions about things like the quality of a child’s relationship with a parent, the impact of substance abuse, mental health disorders or cognitive impairments on a party’s parenting capacity, or whether a child will be better off living in a new town rather than the town in which the child grew up. They concern, not restitution for past events, nor even “winning” and “losing”, but the parenting, support and property arrangements that will best provide for the future functioning of families living apart.

If settlement isn’t likely and you can have a dispute-resolution process that’s custom-designed for your family law dispute, rather than an all-purpose process that also handles motor vehicle accidents and wrongful dismissals, shouldn’t you?

Arbitration options

Here are some of the ways that arbitration processes can be adjusted. They cover most aspects of the arbitration process, including exchanging documents and information, deciding how evidence will be presented and how and when someone can appeal the arbitrator’s award. These and other changes should be discussed with the arbitrator in detail as early in the process as possible, usually at the planning conference held before the arbitration hearing.

Disclosure: You could agree that you will exchange all of the documents that you would exchange if you were going to court before the arbitration hearing, or you could agree that you will only exchange certain documents or certain types of documents. You could agree that the parties will be questioned out of court before the hearing, or you could agree that they won’t. You could agree that each person can require the other to make admissions about the facts of the dispute before the hearing, or you could agree that they won’t.

Mediation: You could agree that the person who is your arbitrator will try to help you reach a settlement through mediation first, or you could agree to go straight to arbitration if settlement seems unlikely. If you decide to try mediation first, you could agree that the arbitrator will be strictly neutral when serving as a mediator, or you could agree that the arbitrator will take a directive or evaluative approach to the mediation. This means that the arbitrator will express her opinion about the strengths and weaknesses of each persons’ case as a part of trying to reach settlement.

Hearings: You could agree that hearings will be held in person, by videoconference or by telephone. You could even agree that there will be no hearings at all, and that the arbitrator will make her decision based only on written information and written arguments. (I can even imagine circumstances when it might be appropriate to have hearings though a group text, using an application like WhatsApp or Messages.)

The rules of evidence: You could agree that the court rules of evidence will apply, or you could agree that they won’t. You could agree, for example, that hearsay – what someone else told someone – will be admitted and that the test to admit evidence will be relevance to a factual or legal issue.

Written evidence: You could agree that all evidence will be provided though documents, like income tax returns and bank records, or that all evidence will be provided through documents and through the written statements of witnesses. You could also agree that no evidence at all will be presented at the hearing.

Oral evidence: If you are going to have witnesses provide oral evidence, and you don’t have to, you could agree that their main evidence will be given in writing and that the other side will be able to cross-examine them on their written statements. Or, you could agree that the number of witnesses will be limited to a certain number, that they will give their main evidence for a limited amount of time, and that the other side will be able to cross-examine them for a limited period of time. Or you could agree that some witnesses will give their main evidence orally and that others will give their main evidence only in writing.

Hearing from children: You could agree that the views of the children will be presented through a short views of the child report or a full parenting assessment, through letters from the children to the arbitrator, or through an interview between the children and the arbitrator. You could also agree that the children will be represented by a lawyer of their own.

Arguments: You could agree that all arguments will be presented orally, in writing, or both orally and in writing. It’s possible that you might agree to let the evidence speak for itself and that no arguments will be presented.

The arbitrator’s decision: You could agree that the arbitrator will make an oral decision, a written decision with only a short, summary explanation of the arbitrator’s decision, or a written decision with full reasons for the arbitrator’s decision. (It can take a long time to prepare a decision with full reasons, and the longer it takes to complete a decision the higher the arbitrator’s bill will be.)

For example, say your dispute concerns only one or two legal issues, like whether a particular asset is shareable family property or not. That dispute might be addressed over the telephone, with oral arguments only and no evidence at all. The arbitrator’s decision might be made over the telephone, without a formal written decision. Or say your dispute concerns figuring out someone’s income for support. That dispute might be addressed with limited documentary evidence and limited oral evidence from the parties alone, and so you might opt for a written decision with only summary reasons.

Planning your arbitration

As you consider your options, try to keep your choice of process as simple and streamlined as possible. This can mean making some difficult decisions, like agreeing to present only three witnesses instead of ten or agreeing to limit the length of time for the cross-examination of witnesses instead of exploring every possible detail. Remember that the longer an arbitration takes to complete, the more money it will cost.

Do your best to think outside the box and challenge your assumptions about the kind of process you need. Remember that a successful arbitration can consist of nothing more than oral argument over the telephone, it can be an in-person hearing that includes all of the processes and procedures available in court, or it can be something in between these extremes. In general, most people who are planning an arbitration should try to balance speed and efficiency and the complexity, importance and value of the issues in their dispute.

Our next column in this series will talk about mediation, including neutral mediation and directive or evaluative mediation.

Alternatives to Court: The Collaborative Process

January 3, 2019 By Sarah Dargatz

John-Paul Boyd explained why people might want to find an alternative to court to reach a resolution about their family law disputes in the November/December 2018 issue of LawNow.

One alternative to court is the Collaborative process. Many processes, such a negotiation or mediation, can be “collaborative”, meaning cooperative or amicable. However, here I am writing about the big “C”, Collaborative Divorce process.

In this process, the people involved in a family dispute sign an agreement to be forthright and transparent in providing relevant information, negotiating in good faith, and to not go to court. Each person has a lawyer who is trained and registered in the Collaborative process. Other specially trained professionals, such as financial and mental health specialists, may also join the team to help the couple find solutions to their disputes. The process, unlike court, is private and confidential.

The process can feel slow at the start. The first few meetings will be focused on building a foundation based on sharing information and discussing what is important to each person. However, once that foundation is built, solutions can come quickly. Through a series of meetings, the separating couple and their lawyers identify what is most important to them and explore options to satisfy their interests. This is often referred to as interest-based negotiations. The goal is to find solutions that work for everyone. It allows a separated couple to come up with creative solutions that work for them and their children. The process works because everyone is playing by the same ground rules.

If the separated couple needs more information about the value of a company or one person’s income in order to set child support, they can jointly retain a neutral financial specialist who will provide an objective analysis to both of them, and their lawyers. If the separated couple needs more information about how their actions might affect their children, or what decision might be in their child’s best interests, they can jointly engage a child specialist who can educate them or provide their professional opinion. If one, or both, people are having a hard time moving forward or processing the separation, they can hire a divorce coach to give them the best tools to manage stress, communicate with their former partner, and fully participate in the process.

The lawyers continue to have the same professional obligations they would have to any family law client such as to advise on the law and provide opinions of likely outcomes. Each lawyer owes a duty to their own client and is not neutral. Once an agreement is reached, the lawyers will draft a legally binding agreement and provide independent legal advice to their own client, separate and apart from the other person. Any necessary court documents to finalize the divorce or separation will be submitted with the consent of both parties.

Many people have found the Collaborative process very satisfying for resolving family disputes.

If the separating couple is not able to reach an agreement, either one can withdraw from the process. In that case, each person would need to find a new lawyer. The discussions that took place during settlement meeting are without prejudice and cannot be repeated, or relied on, in court.

A Collaborative process is not suitable for everyone. Some disputes are relatively simple and a separating couple may be able to reach an agreement on their own, so that all they need from a lawyer is independent legal advice. Or, a separating couple might be well-served by a mediator. In these cases, the Collaborative process may be more than what is required to reach an agreement.

On the other hand, the Collaborative process may not be suitable where one, or both, people are not willing to negotiate in good faith or to be open and honest about their financial situation. In these cases, a court application might be necessary. Where there is a power imbalance, such as in cases of family violence, or where one person has a mental health concern that prevents them from fully participating, it may not be appropriate to use a Collaborative process. Lawyers who are registered in practice in this area are trained to screen clients for their suitability for the process.

The Collaborative process is sometimes criticized as being slow and expensive. It can be expensive relative to mediation or a quickly negotiated settlement. However, when compared to a full litigation, it will usually be more cost effective and the outcome will be more satisfying for everyone involved.

The process can feel slow at the start. The first few meetings will be focused on building a foundation based on sharing information and discussing what is important to each person. However, once that foundation is built, solutions can come quickly. If an immediate remedy is required, or if one person is intentionally delaying, the Collaborative process may not be the best choice.

For more information on the Collaborative process, or to find a registered professional in Alberta, visit www.collaborativepractice.ca and for the Edmonton Association, visit www.divorceseparation.ca.

Resolving Family Law Disputes: Alternatives to Court

November 2, 2018 By John-Paul Boyd

When adults leave a serious relationship, they have a lot of decisions to make. Sometimes these are small decisions, about who can keep the dishes or the books, but more often they are big decisions. Things like where the children should mostly live, how their time will be divided, who should pay how much in support and whether the family home should be kept or sold. Decisions like these, and a few more besides, all fall under the umbrella of family law.

People are often able to resolve these decisions on their own, but when they can’t, they have a problem. Walking away from difficult family law disputes is rarely a good idea, as these disputes involve the most sensitive, most personal and most consequential legal issues there are, and the stakes are usually very, very high.

Earlier this year, the Canadian Research Institute for Law and the Family published the results of a study of family law lawyers’ opinions about resolving family law disputes through mediation, arbitration and litigation. Assuming you’re not going to walk away, there is yet another decision to make. How are you going to handle the legal issues you and your spouse or partner can’t resolve on your own?

Most people say that legal disputes are handled in court. That’s fair. Court is pretty much the only way you see legal disputes being resolved in the media. You can watch Judge Judy, Divorce Court and The People’s Court during the day, lawyer dramas like Suits, Law & Order and Boston Legal in primetime, or The War of the Roses, Kramer vs Kramer and Irreconcilable Differences if you want to go to the theatre. If you’d rather curl up in a reading chair, you can pick up Scott Turow’s Presumed Innocent, Michael Connelly’s The Lincoln Lawyer or pretty much anything ever written by John Grisham.

The usual alternatives to court include negotiation, mediation and arbitration. Negotiation is a bargaining process in which the people involved in a legal dispute, the parties, try to find ways they can each compromise and settle their differences. Mediation is a bargaining process in which a neutral third-party, a mediator, helps the parties talk to each other and identify possible solutions. Arbitration is a process in which a neutral third-party, an arbitrator, listens to each party’s evidence and arguments, and makes a decision resolving the dispute. Handling disputes in court is called litigation.

Court isn’t the only way to handle family law disputes. And, to be frank, it’s pretty much the worst way to handle most family law disputes.

Walking away from difficult family law disputes is rarely a good idea, as these disputes involve the most sensitive, most personal and most consequential legal issues there are, and the stakes are usually very, very high.Litigation is a complex, formal process in which disputes are resolved by the order of a judge, following a public trial. Litigation is governed by elaborate rules of procedure that are often written in language that is hard to understand and require the parties to fill out difficult forms that are also hard to understand. Fees are charged for almost every step in the litigation process, from starting a law suit to filing court forms, and include a special fee that is charged for each day of trial. Despite this, Canadian courts are very busy. It’s not unusual for family law cases to take two to four years to wrap up.

Negotiation, mediation and arbitration are informal, private processes that take place out of the public eye, in an office, a boardroom or a coffee shop. They’re also speedy, since scheduling a meeting for negotiation or mediation, or a hearing for arbitration, is just a matter of picking a day that works for everyone’s calendars. And since they’re speedy, they’re also usually cheaper than litigation.

Earlier this year, the Canadian Research Institute for Law and the Family published the results of a study of family law lawyers’ opinions about resolving family law disputes through mediation, arbitration and litigation. Although almost all of the lawyers it surveyed used litigation to resolve family law disputes, almost all of them preferred not to litigate. The lawyers said that:

litigation costs more than mediation and arbitration, even in high-conflict disputes;
the results they achieve through mediation and arbitration were much more likely to be in the interests of their clients, and their clients’ children, than the results they usually achieve through litigation;
their clients are more satisfied with the results they achieve through mediation and arbitration than through litigation;
the results they achieve through mediation and arbitration last longer than the results they usually achieve through litigation;
resolving disputes through mediation and arbitration makes it easier for their clients to cooperate with each other in the future than litigation; and,
litigation takes more than twice as long to wrap up a family law dispute than mediation and arbitration, and can cost up to twice as much.

Almost four-fifths of the family law lawyers surveyed agreed that mediation is usually cost-effective for their clients, and more than three-fifths said that arbitration is usually cost-effective. On the other hand, almost all of the lawyers surveyed, 87.1% of them to be exact, said that litigation is not cost-effective!

Although litigation has its place — you may have no choice but to go to court, at least at the beginning, if someone is making threats to destroy property or leave the country with the children — it’s not necessarily the best option. If you’re concerned about the length of time it will take to get into court and the amount of money litigation will cost, you owe it to yourself and to your children to think about another option.

I’ll write about mediation and arbitration, and a process called parenting coordination that uses elements of each, in more detail in future articles.

Domestic Violence and Family Law Disputes

August 31, 2018 By John-Paul Boyd

Domestic violence – or family violence or intimate partner violence, call it what you will – is a serious problem in both intact and separated families. According to a 2013 report from Statistics Canada, there are 252.9 victims of domestic violence per 100,000 population, and domestic violence makes up more 26 per cent of all violent crime in Canada. Although children who are victims of domestic violence make up 243.5 people per 100,000 of the under-18 population, spousal violence is the most common form of domestic violence, and 68 per cent of all victims of domestic violence identify as female.

Domestic violence can be an issue in child welfare proceedings, as the abuse of a spouse is significantly predictive of child abuse and domestic violence has important direct and indirect impacts on children even if they are not abused themselves. It can also be a factor in family law proceedings in a number of ways, including:

the need to protect a family member from violence;
the impact of violence on children’s optimal parenting arrangements; and,
the various claims in tort that can potentially be brought against abusers.

Domestic violence was first accepted as a consideration in judicial parenting decisions in the late 1980s, however by the end of the 20^th Century, the domestic relations legislation of only one Canadian jurisdiction, Newfoundland, explicitly identified domestic violence as a factor to be taken into account in the court’s assessment of parenting capacity. However, as time as passed the legislation of more provinces have been amended to include references to family violence, either in terms of the protection of victims or the assessment of children’s best interests.

Section 18 of Alberta’s 2003 Family Law Act, for example, required the court to consider “any family violence, including its impact on the safety of the child and other family and household members, the child’s general well-being, the ability of the person engaged in the family violence to care for an meet the needs of the child, and the appropriateness of making an order that would require the guardians to cooperate on issues affecting the child.” Section 37 of British Columbia’s Family Law Act, passed eight years after the Alberta legislation, went a bit further. The parties and the court are required to consider

(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;

in determining what is in the best interests of a child. If domestic violence is a factor, section 38 provides a list of additional factors for the court to consider in assessing the impact of the violence. The federal legislation on domestic relations, however, the Divorce Act of 1985, remained silent on the issue of domestic violence.

According to a 2013 report from Statistics Canada, there are 252.9 victims of domestic violence per 100,000 population, and domestic violence makes up more 26 per cent of all violent crime in Canada.

On 22 May 2018, the federal government tabled Bill C-78 in the House of Commons. The bill proposes sweeping, much-needed changes to the Divorce Act, the first significant changes since the introduction of the Child Support Guidelines in 1997. Many of the amendments contained in the bill will have a significant impact on the practice of family law in Canada, such as the repeal of the terms “custody” and “access” and their replacement with child-centred concepts such as “decision-making responsibility” and “parenting time.” In addition, the amendments will introduce a legal test to help the court determine applications when a spouse wishes to move away from another spouse, with or without a child. The bill will also overhaul how the best interests of children are assessed by introducing a lengthy list of factors for the court to consider, including domestic violence, adopting an approach very similar to that taken in British Columbia.

Under the amended section 16, the court will be required to take only the best interests of children into consideration when making parenting orders and orders about the child’s time with persons other than spouses. The court will be required to give “primary consideration to the child’s physical, emotional and psychological safety, security and well-being” in assessing a non-exhaustive list of factors set out at section 16(3). Among those factors are:

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Where domestic violence is present, the court will also be required to assess, under section 16(4), the impact of a number of additional factors:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

If the bill become law, the factors set out in section 16 will allow the court to take a careful, more thoughtful approach to domestic violence when determining children’s parenting arrangements. The factors set out in section 16(4) should help the court differentiate between situational violence (the sort of abuse that occurs at moments of crisis but is not characteristic of the spouses’ overall relationship), episodic battering (a recurring pattern of abuse within the relationship that can escalate after separation) and coercive controlling violence (in which the abuse is part of a pattern of authoritarian control), and result in more appropriate decisions on parenting after separation.

The bill will not, of course, end domestic violence. It will, I hope, result in more nuanced decisions on children’s parenting arrangements that better promote and support the best interests and general well-being of children.

If domestic violence is an issue for you or someone you know, visit the Public Health Agency’s Stop Family Violence website. The site is an excellent source of information about domestic violence and provide links to supports and services, including help lines, by province and territory.

The Cases

The Take-aways

Principles of child support

When applications are made

Factors the court considers

When retroactive orders can start

Conclusion

Arbitration and litigation

Starting arbitration

Designing the rules that will govern your arbitration

Planning your arbitration

Funded by