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Posts from the ‘Court Reforms & Changes’ Category

What Should Courts Do With Self-Represented Litigants?

sel rep

What Should Courts Do With Self-Represented Litigants?

While I never intend deliberately to harp on the perils involved with family law litigants representing themselves in court, there has been a recent spate of cases that really illustrate the risks involved – and not all of them come from the Family Law dockets.

In an April 2013 criminal judgment in a case called R. v. Duncan the judge put a downright humorous spin on the narrative relating to a routine highway traffic infraction by the accused. Among other things, the judge admonishes the defendant for his indiscriminate use of the Internet in preparation for his stint at representing himself at trial. The judge wrote:

It has been said that, given enough time, ten thousand monkeys with typewriters would probably eventually replicate the collected works of William Shakespeare. Sadly, when human beings are let loose with computers and internet access, their work product does not necessarily compare favourably to the aforementioned monkeys with typewriters.

Thus it was that the trial began with Mr. Duncan objecting to us proceeding on the basis that I had no jurisdiction over him. Mr. Duncan provided me with an “affidavit of truth”, a rather substantial volume that appeared to me to be the result of somebody doing a Google search for terms like “jurisdiction” and the like and then cobbling them together in such a way that it makes James Joyce’s Ulysses look like an easy read. This hodgepodge of irrelevancies relied upon by Mr. Duncan was one of the misbegotten fruits of the internet. Finding it was a waste of Mr. Duncan’s time; printing it was a waste of trees and my reading it was a waste of my time and public money.

..

Mr. Duncan did not strike me as a fool and individual acts seldom define people, but the red binder he offered to the officers and the “affidavit of truth” he offered to me in court were regrettable descents into foolishness and Mr. Duncan would be well-advised to be more discriminating on what parts of the internet he models himself upon in the future.

The judge in R. v. Duncan also refers to a case – now famous in legal circles at least – called Meads v. Meads which was rendered by an Alberta court last year. That case resulted in a 700-page court decision which dealt at length with what the judge defined as “Organized Pseudolegal Commercial Argument Litigants”, who are essentially vexatious litigants – usually self-represented – who “employ a collection of techniques and arguments promoted and sold by ‘gurus’ (as hereafter defined) to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.”

Certainly the spectrum of self-represented litigants is quite large, and can vary greatly in terms of the litigants’ preparedness, familiarity with court processes, and individual objectives. (And in Family Law, the decision to try to avoid hiring a lawyer is usually cost-driven, rather than ideologically motivated.)

Still, it begs the question: Should courts have formalized processes in place for dealing with self-represented parties? What are your thoughts?

For the full text of the decisions, see:

R. v. Duncan, 2013 ONCJ 160 (CanLII)  http://canlii.ca/t/fwsm0

Meadsv. Meads, 2012 ABQB 571 (CanLII) http://canlii.ca/t/fsvjq

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Are Canadian Judges Ready for to Face Lawyer Criticisms? (And is T.V-Style Courtroom Drama Next?)

lawyer

Are Canadian Judges Ready for to Face Lawyer Criticisms? (And is T.V-Style Courtroom Drama Next?)

Many people form their impressions of how the Family Court system works from watching T.V. shows or movies, namely overwrought legal dramas or courtroom reality shows. The truth is that Family Law process is considerably more mundane; for example in Canadian law there are no “surprise” witnesses who emerge at the eleventh hour to derail the proceedings and save the day for the underdog plaintiff. Courtroom antics are frowned upon in favour of civility and decorum. And while tempers can certainly flare, volleys of insults and dramatic shouting-matches between opposing counsel are generally not tolerated. Moreover, judges have historically been immune to criticism by the lawyers who appear before them.

But should judges be? That was the question recently addressed by the Supreme Court of Canada.

The case called Doré v. Barreau du Québec involved the specific issue of whether lawyers should be at liberty to criticize judges. The case involved a Quebec lawyer named Gilles Doré, who in 2001 represented a client before a judge of the Quebec Superior Court. During the hearing, the judge rebuked Doré for some of his submissions on his client’s behalf, adding that “an insolent lawyer is rarely of use to his client.” He also stated that Doré’s style was full of “bombastic rhetoric and hyperbole,” and that some of his submissions were “ridiculous”.

In response, Doré wrote the judge a private letter, which read in part:

I have just left the court. Just a few minutes ago, as you hid behind your status like a coward, you made comments about me that were both unjust and unjustified, scattering them here and there in a decision, the good faith of which will most likely be argued before our Court of Appeal.

If no one has ever told you the following, then it is high time someone did…
Your deliberate expression of these character traits while exercising your judicial functions, however, and your having made them your trademark concern me a great deal, and I feel that it is appropriate to tell you.

Your legal knowledge, which appears to have earned the approval of a certain number of your colleagues, is far from sufficient to make you the person you could or should be professionally. Your determination to obliterate any humanity from your judicial position, your essentially non-existent listening skills, and your propensity to use your court — where you lack the courage to hear opinions contrary to your own — to launch ugly, vulgar, and mean personal attacks not only confirms that you are as loathsome as suspected, but also casts shame on you as a judge, that most extraordinarily important function that was entrusted to you.
I would have very much liked to say this to your face, but I highly doubt that, given your arrogance, you are able to face your detractors without hiding behind your judicial position. …
Worst of all, you possess the most appalling of all defects for a man in your position: You are fundamentally unjust. I doubt that that will ever change.

Doré also wrote to Quebec Chief Justice the next day, asking to be excused from having to appear before that same judge in the future, since he would be unable to fairly represent his clients before him. Doré also complained to the Canadian Judicial Council about the judge’s conduct (which Council ultimately found in Doré’s favour, incidentally; it ruled that the judge had made insulting and unjustifiably derogatory comments, and adding that the judge had displayed a propensity for making personal attacks on lawyers in other cases as well).
Still, Doré himself was found by a disciplinary council of his province’s Bar Association to have engaged in professional misconduct, based on the letter to the judge which was deemed “rude and insulting”. He was suspended from the practice of law for 21 days. That suspension was later heard by an Appeal Court and upheld.

The matter then came before the Supreme Court of Canada on further appeal. In a unanimous 7-0 ruling, the Court held that the Canadian judiciary should indeed be accountable and open to censure, and that “[l]awyers should not be expected to behave like verbal eunuchs.” In particular, under Charter principles there is a public benefit to allowing lawyers to express themselves in a constructive manner, not only about the justice system in general, but about individual judges in particular. Furthermore, disciplinary bodies were expected to tolerate “a degree of discordant criticism” by members of the Bar toward the judiciary.

With that said, the Supreme Court cautioned that lawyers are still expected by the public to display a certain reasonable level of professionalism and “dignified restraint”, and that they could certainly be subjected to professional discipline if their conduct exceeds that threshold.

In Doré’s specific case, however, the line of tolerance had been crossed; his conduct had gone beyond what the public would expect in terms of proper conduct by a lawyer. The Supreme Court added: “His displeasure with the judge was justifiable, but the extent of the response was not.”

Your thoughts?

For the full text of the decision, see:

Doré v. Barreau du Québec, 2012 SCC 12  http://www.canlii.org/en/ca/scc/doc/2012/2012scc12/2012scc12.pdf

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at http://www.russellalexander.com/practice/

Wednesday’s Video Clip: MIP – New process mandatory for divorcing spouses in Ontario



Wednesday’s Video Clip: MIP – New process mandatory for divorcing spouses in Ontario

Effective July 18, 2011, in all contested family cases are subject to new requirements implemented by the Ontario Ministry of the Attorney General, obliging each spouse to attend a mandatory information program or session.

This requirement is implemented by virtue of Rule 8.1 of the Family Law Rules. Among other things, the mandatory information program provides participants with information about separation and the related legal process, and may include information on topics such as:

• The options available for resolving differences (including alternatives to going to court);

• The impact that separation may have on children; and

• The resources available to deal with problems arising from separation.

Here are some other points to note about this new initiative:

• This is a mandatory information program only; it is NOT the same as mandatory mediation for spouses.

• Spouses do not have to attend the program together.

• It only applies to spouses who are asking for something in addition to divorce (i.e. spousal support, child custody, child access or child support, division of property, and/or equalization of net family property).

• If only one spouse is filing for divorce, the other spouse only has to attend a separate session if he or she contests that divorce, or else makes his or her own claims.

• the fact that one spouse does not attend a mandatory information session does not prevent the spouses from obtaining a divorce.

Once the parties have attended the mandatory information session, they can file their application and proceed to court along the traditional route (with a negotiated settlement between the parties being an option along the way), or can have access to publicly-funded mediation services if they desire.

This mandatory information program has actually been in effect in Toronto for several years already, and was recently introduced in Brampton and Milton. It is now compulsory in other parts of the province as well, and there is a transitional period, which culminates in full province-wide implementation in September 2011.

We hope you have found this video helpful.  If you require further information about Mandatory Information Program please give us a call or visit our website at www.russellalexander.com

Are Parents Liable for their Children’s Wrongdoing?

Are Parents Liable for their Children’s Wrongdoing?

Periodically, there will be an interesting case in the news about a court case somewhere that involves the question of whether parents should be responsible in law for the misbehaviour of their children. Depending on the jurisdiction, the outcome of these cases can vary greatly, and is usually the subject of some controversy.

In Ontario, there is actually legislation that addresses this issue to some extent: The Parental Responsibility Act, 2000 provides that where a child (i.e. under age 18) takes, damages or destroys property, the owner of that property may bring an action against the child’s parent in Small Claims Court. Furthermore, the parent is liable for any damages the child caused, unless that parent can satisfy a court that:

1) the activity that caused the loss or damages was not intentional; OR

2) he or she was exercising reasonable supervision over the child at the time, and that he or she made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.

The Act provides a relatively narrow set of remedies for a narrow range of civil misconduct (it does not purport to cover criminal activity by a minor, for example). And the wording seems fairly straightforward.

So how does this legislation play out in real life? Not always as one might expect.

A decision called Shannon v. Westman (Litigation Guardian of) illustrates how this legislation is applied. In that case, a 14-year-old boy named Jeremy was paid to babysit another child, Tyler, who was 10. While under Jeremy’s supervision – and at his instigation – both children broke into the residence of a homeowner and stole several items, including some valuable pieces of jewellery that had sentimental value.

Jeremy and Tyler admitted to stealing the items, and returned several of them. However, some of the valuables remained unrecovered.

Relying on the provisions of the Parental Responsibility Act, 2000, the homeowner brought an action in Small Claims Court against both the parents and the children, for the value of those items that could not be recovered.

Perhaps surprisingly, the court allowed the homeowner’s action against the children, but dismissed it against the children’s parents.

Since the boys had admitted to the theft, the homeowner had established the fact of the stolen property, so all that remained to find liability under the Parental Responsibility Act, 2000 was for the parents to show that they were exercising reasonable supervision over the boys at the time they committed the break-in, and that they had made reasonable efforts to discourage them from participating in that type of activity.

Turning first to Jeremy’s parents, the court had to examine whether it was reasonable for his parents to allow him to be left at home during the day without supervision. Taking into account all the circumstances – such as Jeremy’s age, experience, background, and the previous history of having left him unsupervised without incident – the court found that it was.

Turning next to Tyler, the court found that at 10 years old, he was at the age when he would not have needed constant supervision; indeed, in the past he had been left with Jeremy without incident for about 7 weeks prior to the break-and-enter. Tyler’s parents had also imposed a structure on the boys’ daily activities, including set check-in-times with the parents, and permission to engage in only approved activities, and it was a structure that both boys had adhered to in the past. Considering all these factors, the court found that Tyler’s parents had also acted reasonably in this case.

In coming to these conclusions, the court noted that the Parental Responsibility Act, 2000 required only that the parents act reasonably; it did not demand perfection. As such, it considered the test under the Act to have been met, and the homeowner’s action against both Jeremy’s and Tyler’s parents was dismissed. However, his action against Jeremy and Tyler was allowed, for damages of almost $20,000, though the amount was reduced to $10,000 to bring it within the jurisdiction of the Small Claims Court at the time.

For the full-text of the legislation, see: http://canlii.ca/t/1k97

For the full-text of the decision, see:

Shannon v. Westman (Litigation Guardian of) (2002), 2002 CarswellOnt 2141 (Ont. S.C.J.)

The Top Five Things NOT to Expect from Family Court

 

The Top Five Things NOT to Expect from Family Court

This week, I wanted to briefly dispel some of the common misconceptions about what happens in Ontario Family Court – and in particular, what NOT to expect from the legal process.

1) Don’t expect to have your legal matter heard immediately.  

There may be great benefit to having matters adjudicated promptly and to having the parties’ affairs quickly wound up – especially in acrimonious family litigation, where emotions run high.  However, the Ontario legal system is saturated with unavoidable delays.    Litigants can expect to wait many months or even years to have their matters finally resolved, and this will be exacerbated when one or both parties take a highly adversarial stance in the litigation, injecting numerous interim motions and other steps which may prolong the process even further.  

Remember:  even at the best of times, the legal process takes time.  

2) Don’t expect to have your matter decided right away, either.

Unless there is an emergency situation (for example in cases where there is an urgent motion brought in connection with the custody or care of any children of the marriage), decisions of the court will not be made immediately at the hearing.

Rather, after hearing the parties, the court may take some additional days or weeks to render a decision, and to produce formal written reasons where necessary.

3) Don’t expect any hand-holding by the Judge.  

Generally speaking, it is always best to have competent legal representation when attending Family Court.   Although the Ontario justice systems does allow for litigants to be self-represented, the decision to go this route is fraught with inherent risks and pitfalls.  True, a court may be a little more understanding and patient with those litigants who choose to represent themselves, but the court has no positive obligation to do so, and certainly is not obliged to step in and help such a party conduct his or her side of the litigation, to give instruction on the relevant legal principles, or to help develop a litigation strategy.

4) Don’t expect TV-grade courtroom drama.

For those who have no regular exposure to the legal system, there may be common misconceptions about how that system works, usually formed from watching movies and television.   However, the truth is that in Ontario (and in virtually all jurisdictions), the real-life court process simply does not involve high-drama tactics such as lawyers brow-beating witnesses during abusive cross-examinations, or dramatic last-minute courtroom entrances with “surprise” witnesses who save the day for the underdog litigant.  

In reality, the court process is well-established, plodding, and rigorously-defined:  it involves certain procedural steps and requirements, strict adherence to laws and civil practice rules, .and sometimes tedious documentary review and other processes.

5) Don’t expect everything to go your way  

The resolution of family law disputes is complex, and involves not only the application of established legal principles and laws, but also the consideration of facts and various interests of the affected parties.  (For example, where there are children involved, the best interests of the child will generally govern the court’s determination).  

Therefore – as with all litigation – the outcome of any family law matter can go one of many different ways, and is not always solely dependent on the sheer strength of the parties’ respective legal positions in the technical sense.  

This may come as a particular surprise to those spouses whose temperament is of the “all-or-nothing” variety, and who have dug in their heels to insist the matter be resolved by a court rather than through alternative dispute resolution methods such as mediation or arbitration.  For such people, the eventual court-imposed outcome is not always to their liking.  This is always the risk that has to be taken when going to court.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com.

 

 

Changes to the Federal Child Support Tables – How it Affects Existing Obligations

 

Changes to the Federal Child Support Tables – How it Affects Existing Obligations

In early 2012, the Canadian government implemented changes to the Federal Child Support Tables.   For those who are subject to existing child support obligations – whether under to a negotiated agreement or pursuant to a court order – the impact of these changes will depend on a number of things, including whether the Tables apply to your matter in the first place.

Federal or Provincial Guidelines

The threshold question of whether these changes to the Federal Child Support Table apply in any given situation depends first on whether the matter is governed by Federal or Provincial Child Support Guidelines in the first place.

As background:  In Canada, matters pertaining to child support are shared between the federal and provincial jurisdictions.   For those married couples who are already divorced or who are planning to divorce, the federal Divorce Act applies; for those common-law couples who are not formally married but are separated, or for those who are married to each other and separated but are not planning to divorce, the provincial legislative regime governs.

Nonetheless, the Federal Child Support Guidelines were enacted by the Federal Government in order create a single set of laws that determine child support for children whose parents are divorcing and whose parents are separating. However, for situations involving divorce, the Government also built-in a special legal rule that allows a province to implement its own Guidelines (instead of using the Federal ones).   Specifically, each province or territory was entitled either create its own Child Support Guidelines, or adopt the federally-enacted ones.

With this in mind, the current state of the law in Ontario is as follows:

1) If you are getting divorced and are obliged to pay or are entitled to receive child support, and if you and the other parent both live in Ontario, then the Federal Child Support Guidelines apply to your situation.

2) If you are getting divorced and are obliged to pay or are entitled to receive child support, and if you and the other parent live in separate provinces or if the other parent lives outside of Canada, then the Federal Child Support Guidelines still apply to your situation.

3) If you are already divorced, and you and the other parent both live in Ontario, then the Federal Child Support Guidelines apply.

4) If you are already divorced, and you and the other parent live in separate provinces or if the other parent lives outside of Canada, then the Federal Child Support Guidelines still apply to your situation.

5) If you and the other parent are not formally married to each other, then Provincial Child Support Guidelines apply.

6) If you and the other parent are married and have separated, but are not planning to divorce, then the Provincial Child Support Guidelines apply.

A copy of the Provincial Child Support Guidelines for Ontario, which are enacted as a regulation, are found here:

http://www.canlii.org/en/on/laws/regu/o-reg-391-97/latest/

The effect of the amendments

With all of this in mind, it is important to understand the effect of the recent changes to the Federal Child Support Guidelines.

irst of all, naturally the changes only apply to those whose child support obligations are governed by the Federal Guidelines, rather than the provincial ones.

Next, if a parent is obliged to pay support pursuant to a written agreement with the other parent, then he or she is at liberty to negotiate a new agreement, or to have any existing order varied by a court, in order to reflect the new Table amounts.   (And those Ontario parents who have had any previous support agreement registered with the Family Responsibility Office must notify that Office of any subsequent change).

Note that these changes to the Child Support Tables do not automatically affect those who are subject to an existing order or agreement; rather, a parent subject to such pre-existing obligation may apply to a court to have it changed, in cases where the amendments would change the amount of child support that is payable by them.  

Also, if a parent has child support amounts still owing as of December 31, 2011 (the in-force date of the amendments), then he or she is only obliged to pay in keeping with the former regime, i.e. the 2006 version of the Federal Child Support Tables, which have been in-force since their enactment.

A copy of the amended Federal Child Support Tables, together with a “lookup tool” are located at the following federal Department of Justice Link:

http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at   www.RussellAlexander.com

 

 

 

The Family Courts and Rules – The Basics

The Family Courts and Rules – The Basics

Fortunately, the average person will have no reason to become intimately familiar with the workings of the Ontario Family Law system. Exposure to the justice system is usually borne of an unfortunate necessity, i.e. in the event of a separation or divorce, with its resulting property, support and child custody issues.

As such, most people are unfamiliar with how the Family Court system works. Here is a brief and basic rundown of the Ontario Family Courts, and the Rules that are to be followed when appearing before them:
The Family Law Courts

In Ontario, and there are essentially three different courts that can hear Family Law matters:

• the Superior Court of Justice;

• the Ontario Court of Justice; and

• the Family Court branch of the Superior Court of Justice.

Which of these three courts will hear a particular Family Law dispute will depend on the location, and the nature of the dispute.

The Superior Court of Justice is the general court within the province; Family Law matters are just one of a broad array of legal topics that are heard before it. It decides disputes involving divorce, division of property, child and spousal support, and custody and access. (Its jurisdiction does not extend to hearing adoption and child protection matters, except on appeal.)

The Ontario Court of Justice hears disputes that fall under most provincial family-related legislation. These include disputes relating to custody, access, child and spousal support, adoption and child protection applications. (This court does not hear divorce matters (which are federal) or matters relating to the division of property).

Finally, the Family Court branch of the Superior Court of Justice (sometimes referred to as the Unified Family Court) has been set up in 17 locations across the province. Since Family Law in Ontario consists of matters governed by both federal and provincial laws, and since this branch of court is authorized to hear both, it is accordingly called a “unified” court. Accordingly, in regions where the Family Court branch exists, the court hears all family law matters, including divorce, division of property, child and spousal support, custody and access, adoption, and child protection applications.

The Courts of Justice Act specifically provides that all judges of the Superior Court of Justice are also deemed to be judges of the Family Court.

The Family Law Rules

All court proceedings – whether federal or provincial – are subject to specific court rules that govern the procedure before the court. Effective July 1, 2004, all Family Law proceedings in Ontario are governed by a single set of Family Law Rules (O. Reg. 114/99).

Among the topics and procedure that is specifically governed by the Family Law Rules are:

• those specific Acts and Courts to which the Family Law Rules apply;

• the consequences of not following the Rules or obey and Order;

• setting out the governing principles that pertain to a court dealing with cases justly, and to managing cases;

• the rules that determine where (in what court and region) a case or application starts

• how and when documents are to be served;

• who the parties to a matter are to be;

• which matters are subject to the Mandatory Information Program;

• the rules relating to Financial Statements;

• the procedure around Case Conferences and Offers to Settle;

• the obligations surrounding disclosure of documents, questioning witnesses, and admission of facts;

• the rules relating to costs; and

• the making and enforcing of Orders.

There are also a dedicated set of Forms enacted under the Family Law Rules, which are to be used in proceedings before the various Family Law courts. These include the specific Forms to be used in an Application relating to a divorce, Financial Statements (for both support claims and for both property and support claims); the Net Family Property Statement; and the various Orders that may be granted by a court.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

 

 

What is ODR? And Should it be Part of the Ontario Justice System?

What is ODR? And Should it be Part of the Ontario Justice System?

There’s no question about it: The modern world is all about technology. Almost anything can be had, promoted, achieved, or accessed in the online environment. More and more, the Internet is simply the place to be.

It should therefore come as no surprise that there is movement afoot in Canada to implement Online Dispute Resolution (ODR). Although there can be various different structures and permutations, this method of dispute resolution generally employs the use of meditators/arbitrators and other tools that are available for use online, and often around-the-clock. ODR aims to be a speedy, cost-effective alternative to having to take certain types of litigation to court.

In fact, British Columbia – which already has an e-filing system in place for filing court documents – is currently running a pilot project to use ODR practices in connection with settling some of that province’s Small Claims matters, more specifically those dealing with:

• consumer contracts that involve a maximum of $25,000 in damages or debt owing;

• recovery of personal property;

• specific performance of an agreement relating to personal property or services; and

• certain disputes involving/between strata condominium owners.

This pilot project also involves the creation of a Civil Resolution Tribunal that features a significant ODR element: Aimed at families and small business owners, it would involve the Tribunal tackling certain kinds of disputes and providing the parties with information that may even prevent disputes altogether. Disputes that nonetheless go forward can be resolved by consent after a negotiation process; failing that, the parties could try to have their matter determined by mediation. If that still fails to achieve resolution, then the parties could avail themselves of arbitration after an independent tribunal hearing, if necessary. The ODR component would be limited to the negotiation process only; however the mediator would be able to contact the parties online, and instigate negotiation services through that medium. The parties would also be able to access an online negotiation tool via the Internet, with templates and other bargaining aids provided. The negotiation comes to an end if the parties are unable to reach a settlement within a stipulated period of time.

Incidentally, some variant of the ODR model has already been successfully implemented in other parts of the world, most notably the United Kingdom and Australia. Various other jurisdictions (such as Quebec, Belgium and Luxembourg) are also considering it.

The government of Ontario, meanwhile, has not yet jumped on the bandwagon; as such, it may be missing out on plenty of potential benefits for the justice system. For one thing, the B.C. project anticipates that by using ODR, a dispute can be resolved within about 60 days, rather than the 12-18 months it currently takes a matter to wind its way through Small Claims Court in that province. This means that individual litigants can benefit from a speedier and potentially more cost-effective process by which to resolve their smaller disputes. And needless to say, if fewer litigants are clogging up the courts, this potentially saves the taxpayer some money as well.

Should Ontario’s justice system explore the ODR option? What are your thoughts?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

 

 

New Ontario Bill Fosters Child-Grandparent Relationships

New Ontario Bill Fosters Child-Grandparent Relationships

The Ontario government has just introduced a new Bill that aims to promote the relationship between children and their grandparents, primarily in situations where the child’s parents have separated or divorced.

Bill 67, titled “An Act to amend the Children’s Law Reform Act with respect to the relationship between a child and the child’s grandparents”, received its first reading on April 17, 2012.   If passed, the Bill will amend those provisions in the existing Children’s Law Reform Act (CLRA) which govern custody or access, by prohibiting the parents (or anyone else who is entitled to custody) from creating or maintaining unreasonable barriers to the formation and continuation of a personal relationship between the child and the child’s grandparents.

Simply put, the amendments strive to promote such connections between children and grandparents, by prohibiting parents or others with custody from actively preventing or impeding such relationships.

Also, Bill 67 would affect custody and access applications under the CLRA, by adding the child-grandparent relationship to the list of considerations that must be applied by a court.

Currently, all applications of this type require the court to evaluate the “best interests” of the child, taking into account the child’s needs and circumstances; these include consideration of the love, affection and emotional ties between the child and a list of other people (including the person with custody or access or other family members).  If Bill 67 is passed, this list will now include the child’s grandparents.

Also, the mandated “best interests” test for the court currently includes the following:

• the child’s views and preferences, if they can reasonably be ascertained;

• the length of time the child has lived in a stable home environment;

• the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

• the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

• the permanence and stability of the family unit with which it is proposed that the child will live;

• the ability of each person applying for custody of or access to the child to act as a parent; and

• the relationship by blood or through an adoption order between the child and each person who is a party to the application.

The new law would augment this list, to include consideration of whether the parent applying for custody is willing to facilitate contact with the child’s grandparents.

Admittedly, the Bill is still in the very early stages, and needs to proceed through second and third readings before it could  become law in Ontario.  However, few could argue that it represents anything other than a positive addition to family law in the province.

For a full copy of the proposed Bill, see:

http://www.ontla.on.ca/bills/bills-files/40_Parliament/Session1/b067.pdf

B.C.’s Parental Responsibility Act — Is it Worthwhile?

B.C.’s Parental Responsibility Act — Is it Worthwhile?

In August 2001 – over 10 years ago – British Columbia passed legislation titled the Parental Responsibility Act.  At the time, it was heralded as a positive step towards making parents more generally accountable for the conduct and (mis)behaviour of their children.  Among other things the Act gives individuals whose property has been damaged by children the right to sue the children’s parents for compensation.   (It does not go so far as to create an offence – criminal or otherwise – of failing to supervise one’s children, however).

The key provision of the Act imposes potential financial liability for property damage on a parent of any child who “intentionally takes, damages or destroys property of another person”.  The maximum award under the Act is $10,000 (which falls within the jurisdiction of the B.C. Small Claims Court).

In terms of resisting liability, parents may rely on stipulated defences in the Act, specifically that he or she:

• was exercising reasonable supervision over the child at the time the child engaged in the activity that caused the property loss, and

• made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that caused the property loss.

With regard to what constitutes the exercise of “reasonable supervision” and “reasonable efforts to prevent or discourage the child” from engaging in the damage-causing behaviour, the court may consider any of the following:

• the age and maturity of the child;

• the prior conduct of the child;

• the likelihood that the activity would result in property loss;

• psychological or medical disorders, psychological, physical or learning disabilities or emotional disturbances of the child;

• whether the likelihood of property loss arising from the child’s conduct was reasonably foreseeable by the parent;

• whether the child was under the supervision of the parent when the child engaged in the activity that resulted in the property loss;

• if the child was not under the supervision of the parent when the child engaged in the activity that resulted in the property loss, whether the parent made reasonable arrangements for the supervision of the child;

• whether the parent has sought to improve his or her parenting skills by attending parenting courses or in any other manner;

• whether the parent has sought professional assistance for the child, designed to discourage activity of the kind that resulted in the property loss;

• psychological or medical disorders, psychological, physical or learning disabilities or emotional disturbances of the parent; and

• any other matter that the court considers relevant to the determination.

It all sounds like a good idea, right?

The reality is that even though the Act remains in force in B.C., it seems to be seldom used in practice.  In the 10 years since it was enacted, there appear to be only two court decisions that apply or even refer to it.

Do you think we need a law like this in Ontario?   I would love to hear your thoughts.

For the full text of the legislation, see:

Parental Responsibility Act, S.B.C. 2001, c. 45  http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_01045_01

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