| Volume 19, No. 4 - June/Juin 2008 |
| Volume 19, No. 3 - April/Avril 2008 |
| Volume 19, No. 2 - January/Janvier 2008 |
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 Volume 19, No. 4 - June/Juin 2008
Canadian Bar Association Nunavut Branch Spring Report Book Review What Happens When a Spouse Makes a False or Exaggerated Complaint of Domestic Assault to the Police?
Matrimonial Affairs is published by the Family Law Section of the Ontario Bar Association. Members are encouraged to submit articles or suggest story ideas. The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment. |
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Canadian Bar Association Nunavut Branch Spring Report
The Weather Up Here… Karen L. Wilford*
Ahh, January. The morning is a crisp minus 43. Which would not be a problem, but for the wind chill – minus 57 just does not seem like it could be a real temperature where human life can exist. Especially in the dark! However, its reality is embodied in the feeble moaning of the truck starter as it refuses to come to life. How can this be???? I am plugging the thing in every night at a cost of $10.00/day. Investigating the extension cord reveals that the sewage truck has run it over, snapping the life giving hydro. However, there will be NO cursing of the sewage truck drivers; both they and their water truck brethren are welcomed with fanfare when one tank is full and the other empty. I do sometimes miss the days when I did not count shower minutes or the number of flushes. Suiting up for the walk to work means the Canada Goose parka. How can something costing $500 be so completely devoid of fashion? “I look like a potato” wailed one newly arrived urbanista. Wind hood fully extended, balaclava with a toque on top of that, neck tube, down filled mitts. It’s a noisy, wiff-wiffing of ski pants as I make my way up the hill. Five minutes walk after 15 minutes of gear acquisition. Once I jogged merrily with colourful weights around my wrists. Now I get a good combo workout from the 20 pound boots that are rated to minus 70. Welcome to my office: the Kitikmeot Law Centre in beautiful Cambridge Bay. One of three regional clinics across Nunavut that deliver legal aid services in criminal and family law to the 26,000 residents of Canada’s newest territory. The Kitikmeot region is the western- most region and has five permanent communities and two out-post camps. There are no roads to or between these communities. I am told that you can get to Yellowknife on skidoo once the ice is in, but it’s a two week trip. Stone age technology was actively used within living memory of the people here. Ice houses warmed with seal oil in the stone kullik, fish and seals harpooned with the unique three pronged kakivak, clothing of caribou, raw meat diet. Today, however, satellite technology provides the high speed internet and fax machines on which we rely to deliver legal services in this still forbidding environment. There are currently four family law lawyers in the Territory, and we are assigned clients from all of the 26 communities. Much too much of our work has to be done by telephone. Delicate client intake. Reviewing a damning affidavit. Explaining an unfavourable court decision. Discussing child protection concerns. Suggesting lifestyle changes that might enhance trial prospects. Oh and by the way, my Inuktitut and Inuinnaqtun language skills are, I’m embarrassed to say, non-existent. There are no process servers. Many, many clients do not have telephones. There is a significant cultural gap, which includes a distinct lack of trust in the judicial system on the part of many Inuit people. The population is plagued by social issues of a magnitude that defies description. The work is challenging in ways that will never see me going to the Supreme Court. But it is work that compares in importance. The cold of the morning has resulted in the office building having shifted – the front door won’t open as a result. I discover this by bending the key and only just being able to retrieve it. Luckily there is a back way in through the service garage business next door. We are finally open for business at 9:30 a.m. Turning on the computers, we turn to the first item of the day: checking the weather forecast. Looks like the temperature is rising rapidly this morning. Good news? Just the opposite; warming trends mean blizzards are likely and sure enough that is the prediction. The town shuts down when there is a blizzard. All the modern technology in the world cannot mitigate the effects of severe winter weather here. People die every year in Nunavut as a result of weather. A colleague was only a kilometre from town when an ice fog rolled in one spring day. The fog stayed for days and had my friend not had his GPS, he would have been eating lichen and sleeping on the tundra, as the town disappeared and disorientation was only a glance away. Blizzard preparation in a law office here means ensuring that you immediately fax all of your documents to the Court registry in Iqaluit for filing. Once the satellite is affected, we can lose both internet and fax. Calls and emails go out across the Territory to colleagues to advise of the impending shut down. It’s like my kids calling “T” during tundra tag. Everyone stops, adjournments are consented to, negotiations hold fast and time lines are extended. Counsel on the other side will offer to file documents for you, get a message to your client and speak to your matters in court, if the phone connection doesn’t work. No one, EVER, takes advantage. Otherwise, it’s business as usual at the Kitikmeot Law Centre. On any given day, I will field phone calls about wills, employment insurance, landlord and tenant matters, debtor/creditor, the Residential Schools settlement. These are not within the Legal Aid mandate, but people need to be referred. They need SOMEONE to talk to. We have no bookkeeper, IT department, office manager, custodian. Well, we do actually. And my skill level at any of those positions varies by the task at hand. After three years, I have mastered the books. The photocopier still emits a clacking sound that makes me cringe. And my kids come in twice a week to clean the bathroom, vacuum the floors and do the shredding. My family law practice has changed from the high conflict custody files and the complex property matters of my past. I spend large amounts of time explaining that child support is not optional and that new relationships do not extinguish those obligations. The harder days are those spent trying to outline alternatives to unhealthy relationships and encouraging safety plans in a way that keeps my door open and welcoming to the clients. Success is no longer measured in billings or certifications or lines of print. Success is when a client comes to see me before the social worker has apprehended the children. When the local wellness counsellor encourages the client to confide in me as a safe support. When a local high school student asks to give my name as a reference. When a client proudly displays the money order receipts for the child support payments made. When the probation officer gives me a ‘heads up’ before actually laying a breach charge. When a homemade gift is delivered. When a post card arrives from a treatment facility. These are much smaller, harder won and all the more satisfying. Meanwhile; the wind is gusting to 90 kph, the larder is stocked with snacks and the Harte/Wilford family is snuggled up with a selection of movies ready to wait out the storm. Tomorrow’s forecast? Challenging with chances of making a difference. Zero percent possibility of boring. * Karen L. Wilford, Executive Director Kitikmeot Law Centre, Court Worker Coordinator. |
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Message from the Chair Thomas C. Dart*
Our Annual Meeting on June 12th is on us and so comes to an end my first year as Chair of the Section. It seems to have been a very busy year, but, at the same time, so interesting that it has not seemed busy. As we all know, time moves way too fast and years go by way too soon. There is never enough time to keep up with our clients and get done all the things we would like to do. Our Section is working very hard on a number of fronts: the Family Law Working Group has completed draft papers on a number of issues regarding reforms to the Family Law Act. We are also working with a broader group to provide the Law Commission of Ontario with an OBA position on Pension Reform. We are also part of the Ministry of the Attorney General Working Group on family law reform. All groups are working toward a July 31st deadline for submissions. The Attorney General has indicated that he intends to move forward on a number of reforms that are in the public interest and are accepted by all groups as necessitating amendments to the Act. We are also invited to make submissions to him to improve the time it takes to get our cases through the system. In addition to all of this, our Section has presented a number of excellent day and dinner programs on all areas of family law. Sincere thanks to all of the Chairs and the presenters for a job well done. We are in the planning stages already for next year’s Institute program. Finally, I had the very good fortune to attend the CBA National Family Law Section held in Charlottetown P.E.I. On May 30th, Kelly Jordan, Grant Gold and I participated as speakers at a CLE program sponsored by the PEI bar. The meeting of the National Section was held the following day. We were treated so well by the very hospitable PEI bar that Grant is already planning to go back for a charity event in September! Needless to say this does not get done without the help of so many volunteers. I wish to thank all members of our Executive Committee for all the work that they have so willingly done all year and in particular Wendy Napier who has worked tirelessly on the area of law reform and, of course, Kelly and Grant for taking care of all the preparation for the Annual Meeting at which I hope to see you all. If you have not signed up, go to the OBA web site and do so as soon as you can. It promises to be a very entertaining event. As this is the last issue of Matrimonial Affairs for this year, I also wish to thank Jacqueline Mills and the entire newsletter committee for publishing perhaps the best newsletter in the OBA! See you next year! * Thomas C. Dart, Burgar, Rowe Professional Corporation, (705) 721-3377. |
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Irish Leaders Praise Collaborative Law Toni Pietrantoni and Sandra Demson
The Association of Collaborative Practitioners hosted the 2nd European Collaborative Law Conference on May 1st to 4th, 2008 in Cork, Ireland. The theme was “MEITHEAL” which means community in Gaelic. The conference was a resounding success. It was attended by lawyers, mental health professionals and financial professionals from 17 different countries. The current President of the IACP, Ron Ousky, made it clear at the outset that the IACP is for the world and not simply for the Americans!
Ireland’s Attorney General, Paul Gallagher, addressed the conference. His familiarity with the Collaborative Process and his support of it was significant. Quoting Learned Hand “there is much more to law than inveterate advocacy”, he welcomed Collaborative Law as an expression of conflict resolution that protects human dignity within the disorder of the break-up of the family. The President of Ireland, Mary McAleese, welcomed the focus of Collaborative Law on process, creating a culture of cooperation, and building on what is good on both sides of the dispute. “Collaborative Lawyers are the best among us” she concluded!
On the closing day, Brian Lanihan as Minister of Justice (he has since been appointed to the Finance portfolio), endorsed Collaborative Law. “The critical feature of this form of dispute resolution is that, having agreed not to take part in any litigation that may occur if no agreement is reached, lawyers focus on finding a settlement, rather than preparing for court proceedings. All parties, including the legal representatives, focus on collectively creating an equitable agreement.” Wouldn’t it be nice if we in Ontario could receive that kind of encouragement and support? Our own Victoria Smith along with the California mediator Chip Rose opened the plenary sessions with a discussion of replacing the metaphor of “war” for divorce, with one of “dance” when describing conflict resolution through the collaborative process. As we all know, the collaborative process works best when we engage at different levels including our energy level, a different dimension than that required in the traditional mainstream practice of law. Being well aware of the impact of working in this dimension, we were treated to provocative stories from a well-known Irish storyteller Eddie Lenihan as well as to engaging readings from Theo Dorgan, an Irish poet. I came away from Cork, as I have from other IACP conferences in the past, recognizing I am part of a “Revolution” (until we find a better word to use, I am stuck with this one). As Chip Rose commented, how often will we be able to say that we have in our lifetime been part of a revolution? And, on every occasion including at Cork, I am awed by the significance of the collaborative process for us as individuals, for our practices, for our community and ultimately for our world. I feel privileged to be involved in a process aimed at doing good and being restorative. I feel I will personally benefit by being part of this process. I know my clients will benefit. And, ultimately I hope our community and our world will benefit. That is my hope and my aim. |
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Jackson v. Jackson
Leading the Horse to Water Jacqueline Mills*
I have started handing out a copy of this case (2008 CarswellOnt 654) to my clients who are not the most, shall we say, open minded or accepting of their partner/former partners role in the children’s lives. Handing out this case makes it a lot easier to tell parents that their behaviour just won’t do and the courts will not tolerate it. Not only is this case a lesson for parents, it is a lesson for the lawyers. Justice Murray praises those lawyers who “do what is reasonable and practicable to encourage rational, efficient, effective and constructive dispute resolution. In short, they attempt to minimize conflict while achieving appropriate results for their clients informed by the applicable legal principles including, the best interests of the children.” He is critical of those lawyers who “seem willing to engage in the kind of adversarial and tactical conduct that augments and deepens conflict that is antithetical to rational dispute resolution. Too many counsel seem willing to engage in such conduct for its own sake or at the behest of angry clients without regard to cost or to outcome and, more importantly, without regard to the best interests of the children.” Justice Murray runs through some of the social science literature about the impact of a “high conflict” divorce on the children involved and the judgment is a call for litigants to wake and up and realize what they are doing. Of course, it will not sink in with some people. I was recently discussing with a client the impact of her actions on her children. Her take on it all was that her parents had a high conflict divorce where the children were impacted, but she survived it all and so will her children. You can lead a horse to water…. * Jacqueline Mills, Barrister & Solicitor, (416) 929-6109. |
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Book Review Making Olives and Other Family Secrets by Darlene Madott, Longbridge Books, 2008, $18.00 Reviewed by Sandra Demson*
Darlene Madott has just published a second collection of her short stories: Making Olives and Other Family Secrets (see our Matrimonial Affairs review in 2004 of Joy Joy Why Do I Sing). This latest collection includes stories written and published back in the 1980’s, but is book-ended by the story that gives the volume its title, and by a previously unpublished story “Powerful Novena of Childlike Confidence”, both of which stand out in the collection for their astonishing insights into the lives of Italien Canadian women. In the first one, Darlene weaves her Sicilian mother’s family recipe for making olives into the tumultuous lives of these Italien aunts, mothers, sisters, daughters, their husbands, lovers and children, keeping us mindful of how our communities direct and influence our lives from beginning to end. In “Powerful Nowena”, Darlene turns to Catholic liturgy and traditional groupings in art – not surprisingly, the meeting between Mary and her mother Elizabeth before the birth of Elizabeth’s son John – to throw into relief the comings and goings of women in her generation of Italien Canadian families. John Irving once advised writers never to write for a living, but to keep a day job to support themselves and to maintain the integrity of what they write. Darlene Madott, a family lawyer and mediator at Teplitsky Colson, is living proof of the wisdom of that advice. Her stories are beautifully written and constructed, delightful in their humor and penetrating in their honesty. She enriches our legal community, and especially the lives of those of us who happen to be female. Back at you, Darlene! * Sandra Demson, (416) 925-4144. |
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What Happens When a Spouse Makes a False or Exaggerated Complaint of Domestic Assault to the Police? This is by far one of the most challenging dilemmas that face matrimonial lawyers. The telephone call comes in over the weekend. The client was arrested by the police for domestic assault. She or he was released on bail terms that prevent her/him from returning home or having contact with her/his spouse until the criminal case is resolved (which can take months). In the meantime, her/his contact with the children is restricted. The details come out. The couple was living in the same home. For months, there have been arguments. Despite the tension in the home, they have been both caring for the children and meeting their daily needs. Neither spouse was willing to vacate the matrimonial home (although each wanted the other to move out). But, on this night, the couple had a bigger than usual fight. Words were exchanged. Tempers ran high. There was pushing and shoving. Eventually, things cooled down. A few days passed. Then one spouse decides to use this event to remove the other spouse from the home. That spouse attends the police station and makes a complaint of domestic assault. The police take a statement. Under pressure to ensure that reports of domestic violence are properly addressed, the police arrest the other spouse and remove her/him from the matrimonial home. Now the divorce case begins. One spouse is at a tremendous disadvantage. She/he is not allowed into the home. She/he cannot communicate with the other spouse. She/he has no (or limited) access to the children. She/he does not have a place of her/his own to spend quality time with the children. The court system is severely back-logged, so that the case takes months to be presented to a judge. The spouse who was arrested is in dire financial straits. She/he needs to pay rent, while still required to contribute to the household bills and, usually, even pay child support to the spouse remaining in the home with the children. On top of this, she/he needs to pay two lawyers – a criminal lawyer and a matrimonial lawyer. Devastating. This really does happen. But what doesn’t usually happen is a Family Court Judge taking charge of the situation, identifying the misconduct, especially as it affects the children, and finding an immediate and appropriate remedy. This happened recently in the Orangeville case of Shaw v. Shaw [2008] O.J. No. 1111. On March 19, 2008, the Honourable Mr. Justice Pugsley was confronted with the case of Stephen Edward Shaw and Alison Shaw. The Shaws were married in 2001 and separated in 2008. They had children who were 6 and 2 years old. On March 11, 2008, Mr. Shaw attended at the Shelburne police station and complained that his wife had assaulted him on February 9, 2008 (one month earlier) while at a social function. Ms. Shaw was arrested and charged with assault. The resulting bail conditions barred her from the matrimonial home and stripped her of her custodial rights to the children. While Ms. Shaw was in police custody, Mr. Shaw obtained an emergency court order for custody of the children. The case came back before Mr. Justice Pugsley on March 19, 2008. In his decision released a few days later, Mr. Justice Pugsley discussed his observations of this recurring problem - how police and criminal procedures impact and pre-empt spouses’ family law rights. He stated: “the events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light, although her story is commonplace.
These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact.
Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of, or access to, the defendant’s children without any consideration of the factors that this court must apply by law before determining incidents of custody or access.
This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada. Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted.
I observe, however, that the damage of which I speak is not from the laying of the charge - this will happen in any event, regardless of the manner in which the defendant is brought before the court. The way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties.
Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system - from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency - effect the lives of the members of the defendant's family. Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation. Routine orders excluding a party from the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved.
Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit.” Mr. Justice Pugsley stated that Ms. Shaw’s case illustrated the dangers of speedy or discretionless criminal procedure. In cautioning anyone who read this decision, he stated: “I can only hope that no licensed lawyer in this province would have advised the father that the fastest way to get custody and exclusive possession of the family home was to report the mother’s transgressions to the police.”
“I can only hope that the (police) officers whom he (Mr. Shaw) saw do not believe that complainants in criminal matters decide whether charges are, or are not, to be laid.” In the end, Mr. Justice Pugsley acted fast to return this family to the status quo that pre-existed the criminal charge. Specifically, the children were to spend equal time with each parent on a weekly rotation. Even though this court took the time to remedy the problem in this family’s case, there are countless other cases where one spouse is severely prejudiced by the unfair operation of the criminal court process. Let’s hope that this decision signals a fresh look at the interplay between criminal law and family law procedures and how this affects a spouse’s legal rights. |
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All I Ever Need to Know about Mediation I Learned during My Week at Harvard Susan Jack*
During the week of June 11th (2007 – okay, it took me some time to get this off of my desk), I was lucky enough to be a participant at the mediation workshop at the Harvard Program for Instruction. I was lucky because the demand for the course far exceeds the number of willing participants. I also felt lucky because by the time I went to the course the US dollar only cost me about $1.10 Canadian (and they don’t pay sales tax on clothes or shoes). The workshop consisted of 45 students from the US, Canada and around the globe. One participant came from as far as Australia. There was only one other participant who was a family lawyer. The balance of the participants were primarily lawyers and Judges, including the Chief Justice from a state nearby. We received the agenda and the course materials a few weeks prior to the commencement of the course. You can imagine my shock and horror when I reviewed the agenda and found that there was little to no free time, either during the day or in the evenings. I would soon learn that despite the hectic schedule, it was one of the best weeks of vacation I had in 2007. The instructors were top flight. Frank Saunders from Harvard, although 81 (at the time) was as sharp and witty as he likely was 30 years ago when nobody had ever heard of ADR. There was also a husband and wife team, Linda Singer and Michael Lewis who carried the course and were charismatic and funny. Lastly there was Greg Darren, a mediator from L.A. who was clearly laid back and well respected. So what did I learn? I am of the view that the skills I learned can be applied to mediators, as well as lawyers participating in a mediation. When attending mediation as counsel I learned:
As a mediator, I learned the following:
I have had a year to incorporate these tips into my practice. I hope that some may be of use to you as well. I was hooked on ADR and mediation before the workshop, but I now have even greater respect for our ability as mediators to achieve great results that are emotionally and financially cost effective to those utilizing the process. The composition of my practice continues to change as I continue to litigate fewer and fewer cases and continue to expand the range of ADR services I offer. I look forward to continuing to negotiate with you, collaborate with you and to mediating your clients’ family law cases. * Susan Jack, Smith Family Law Group, (416) 363-4100. [1] Next time you recommend med/arb to a client perhaps you should consider retaining one person to conduct the mediation and another person to conduct the arbitration if the mediation does not result in a resolution. |