Monthly Archives: October 2010

Facebook & Serving Legal Documents

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Andrew Feldstein of the Feldstein Family Law Group asks in a post to his blog, whether this is the future of family law:

According to this week’s edition of Law Times, Justice Cheryl Robertson of the Ontario Superior Court of Justice granted an Order allowing an Applicant to effect service through Facebook earlier this month. She also presented a paper to the Kingston and 1000 Islands Legal Conference urging lawyers “to be creative with electronic methods of service.” Justice Robertson argues that as the Justice System is increasingly becoming “out of reach for many” due to costs, using different types of e-service, such as through Facebook or e-mail, would be both time and cost-efficient.

[...]

In the case in which Justice Robertson granted service through Facebook, the Applicant mother was unable to locate the Respondent father in order to serve him with the Application. She was, however, able to find his profile on Facebook. As Justice Robertson has noted, some parties to family law proceedings work hard to not be found, but are unlikely to separate themselves from either their computer or cell phone. Therefore, if the person is able to be found and served over Facebook or through e-mail, then these methods of substituted service should be seriously considered over other means traditionally used. The Applicant mother ultimately served the Respondent father through a message with attachments over Facebook.

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Mandatory Book Summaries ordered by Toronto Judge

From the Toronto Star of October 28, 2010:

A judge has ordered two warring parents to read three books on communicating, parenting and divorce and write a one-page summary of an insight they gain from each.

Ontario Superior Court Justice David Price told the separated couple, who are bickering over money and access to children, that the books “may improve their ability to communicate and resolve some of the issues that are troubling them.”

Interestingly, Justice Price sits in Brampton, Ontario, which together with Milton, Ontario has since June 2010 been the site of a pilot project, the Mandatory Information Program.

The program helps families learn about their options to find resolutions without going to court and steps they need to take should they decide to proceed through the court system. It also helps them understand the impact of separation on children and identifies resources available to help them through separation and divorce.

In Brampton and Milton, the program applies to family law cases started after May 3, 2010.  I’m inferring that Justice Price made this order because the couple’s action had started before May 3, and as such they were not required to attend the program.

 

Hon. Chris Bentley, Attorney General of Ontario

More important though is that the Ontario Attorney General has decided to expand this pilot project to all 17 sites in the province with a Superior Court of Justice (Family Court).  This high court level has jurisdiction over both family actions brought under provincial legislation (the Family Law Act, the Children’s Law Reform Act) and under federal legislation (the Divorce Act).  The program will apply to all family law actions begun as of December 1, 2010.

More information about the Mandatory Information Program:

Parties are not permitted to proceed to the next step in their proceeding unless they have obtained a certificate of attendance. Judges, however, can make exceptions in cases of urgency, hardship or for other compelling reasons.

A lawyer and a mediator, social worker or mental health professional who volunteer their time to the project present the sessions.

[...]

Appointments are scheduled at the time the originating document is issued at the counter. The applicant and respondent are given separate dates, notices are generated from the court computer system, and the applicant is required to serve the respondent with the appointment date along with the originating process. Parties can contact the court to reschedule the assigned appointment if it is not convenient.

In Ottawa, where I live, the program will be offered in both English and French.

Kudos to Attorney General Chris Bentley!

 

What makes a Father?

Since last weekend here in Canada, the news media have drawn our attention to the case of a young woman, conceived with an anonymous sperm donation, who is challenging the law precluding her from learning her genetic father’s identity.  It is of course a very complex issue to examine with rights and interests on both sides of the argument.

Consider, however, this excerpt from a commentary by two family law professors that was published in today’s Globe and Mail:

We recognize the interest that donor children have in knowing their genetic origins. But is it a right that trumps all others?

The rhetoric of genetic connection risks erasing social bonds between parents and children. It implies that identity results from genetics. And the idea that genetic origin makes people who they are devalues diverse means by which people form families. Consider adoptive parents or parents who conceive through assisted conception. They may be gay or straight. Such parents are not mere caretakers of someone else’s genetic heritage. They contribute to their child’s identity.

What do you think?

Related Articles
  • Parentage is about more than DNA (theglobeandmail.com)
  • Abolishing anonymous sperm donation could scare off men, fertility experts warn (theglobeandmail.com)
  • Anonymous sperm donation needed: fertility experts (ctv.ca)
  • Woman asks courts to grant parent’s identity to children of sperm, egg donors (thestar.com)
  • Province sued to open sperm-donor records (theglobeandmail.com)

Is Transformative Mediation suitable for all types of conflict?

Its detractors often state that because transformative mediation subscribes to a relational world-view, it isn’t really suitable in types of conflict, say over an insurance claim or a construction dispute, where relationships may be short-term or ephemeral.  Here’s a short clip of Joe Folger, one of the codifiers of this approach, commenting on how this  model restores the promise of meditiation, to give people voice and choice:

What do you think?

If you’re interested in the complete interview, go to mediate.com.

Is Mediation ever appropriate in Cases involving Domestic Violence

Supporters of domestic violence victims look a...

The Empty Plate/Silent Victims display in Hawaii memorializes domestic violence victims (Image via Wikipedia)

From a September 28 post in Karl Bayer’s blog, Disputing:

A recent article in the Yale Journal of Law and Feminism entitled “Moving Out of the 1990s: An Argument for Updating Protocol on Divorce Mediation in Domestic Abuse Cases,” 22 Yale Journal of Law and Feminism 97 (2010), makes an interesting argument that many states need to reexamine policies banning or restricting mediation in divorce proceedings involving domestic violence.

I’m going to permit myself an observation on the article in question despite my only having read its abstract.  (I haven’t found the full text online.)

In the 1980s and 1990s, the feminist critique of mediation centred on how the process disadvantaged women as a whole. The mediation process was private, not accountable, and did not create or rely on precedent cases. In contrast, the legal system was public, accountable, rights-, and precedent-based. Consequently, it offered women much more of ‘a level playing field’ as well as legal protections and rights than the mediation process itself.

In evaluative mediation, the so-called ‘shadow of the law’ actually becomes a virtual party to the mediation process. So, in calling for the reform of policies on court mediation where DV is involved on the basis of the present realities of court mediation (evaluative not facilitative), the article is in a sense extending the former feminist critique of mediation as a whole: the more mediation resembles a legal process, the more acceptable it will be to women.

But is this the only way mediation in DV cases is acceptable? For me, the key question in DV cases is to customize a process that doesn’t deny a victim her voice or her options while at the same time ensuring her safety and protection. Since 2004, this type of approach has been implemented in Dutchess County, N.Y, through partnering mediators and DV counsellors: “The first rule in all such cases is the domestic violence itself is never a topic for mediation.”

Consider Elder-Care Mediation

Médiation

Image via Wikipedia

Consider elder-care mediation:

In this fast-growing field, a trained, neutral conflict-resolution professional—sometimes an attorney or therapist—meets with adult siblings and, if they’re alive and able, their parents, to sort out contentious or unresolved issues relating to Mom and Dad. The mediator’s job is to defuse the situation and keep the group focused on their common goal: to come up with the best possible outcome for a parent they all love and to preserve family relationships. Everyone gets to talk (or vent or cry) and problem-solve to reach an agreement. In some situations, an elder law attorney, financial planner, caregiver or geriatric care manager also attends to lend his or her expertise.

[...]

The dissension may revolve around any number of issues:

  • Money—who controls it, distrust of the adult child handling the checkbook, a sibling who has received more than his “fair share” of financial support or bears unequal caregiving costs.
  • Medical and end-of-life choices.
  • Family possessions, including inheritance, guardianship, sale of the parent’s primary or vacation home.
  • Independence and safety (for example, taking away the car keys).
  • Living arrangements or caregiving—one sibling shouldering the burden or being controlling, another not pulling her weight, or someone feeling cut out of the loop.

Other issues include: multiple decision-makers and personalities, economic and geographic disparities among siblings, different expectations, complicated role reversals, ingrained ways of behaving, old “baggage” and personal commitments. As these issue play out, siblings watch a cherished parent decline or deal with loss—and a new industry is born.

Rather than going to court, where a judge calls the shots, mediation is nonbinding and confidential, decisions are made by consensus, and attendance is voluntary. It’s also cheaper than litigation: $150 to $500 per hour for several hours for a private mediator’s time, or a nominal fee if you work through community mediation centers. Family members often share the costs. Another option—doing nothing and letting problems fester—can carry the much heavier price tag of ruptured relationships, impacting interaction with beloved cousins, nieces, uncles and even the next generation.

Related Articles
  • Elder mediation: How one family got help (theglobeandmail.com)

Call for Canadian Dementia Strategy

 

Auguste Deter. Alois Alzheimer's patient in No...

Auguste Deter. Alois Alzheimer's patient in November 1906 (Image via Wikipedia)

 

A while back, a Canadian suffering from Alzheimer’s disease became a cause célèbre when it was learned that he had spent 30-days in jail before a bed was found in a long-term care facility.  He landed in jail when in a confused state, he pushed his wife down; she needed eight stitches to close the wound from the fall.  The wife agreed reluctantly to press charges when advised that that was the only way to get her husband the help he needed.  The help he got was to spend time in a medical unit of jail; fortunately, his case attracted media attention, and a bed in a proper care institution was found for him.  However, he still has to return to court on November 8th to face charges of assault causing bodily harm.

In reviewing the case, André Picard of the Globe and Mail writes today:

When a sick person urinates in public, shoplifts, trashes the family home or hits someone during a psychotic outburst, the police always say the same thing: Press charges and they will get help.

But the help too rarely comes. That’s why our prisons are full of people with mental illness. (One in eight federal prisoners has a diagnosable mental illness, and the rate is significantly higher in provincial jails.)

All we need now is to start dispatching elderly Alzheimer’s patients to jail for their transgressions.

Let’s state it plainly so that politicians, judges, physicians and others in positions of responsibility understand: It is unacceptable to jail someone with Alzheimer’s. (emphasis added)

Psychosis is a common symptom of Alzheimer’s and other forms of dementia. It needs to be treated, not punished.

Jail is not – and will never be – a substitute for care, and care should never be dependent on criminal charges. Our health system and our justice system need to be more humane and rational than that.

We don’t need Grandpa Prisons. We need a dementia strategy.

Please read André Picard’s column in its entirety.