Tag Archives: Family Law

UK Ministry of Justice video on family mediation

I have a few glosses² to add to this:

  1. Contrary to the video, I prefer the objective of mediation to be stated as a process in which people can explore, with the support of a trained, impartial third person, the possibilities for resolving their differences. In other words, the objective of the process is whatever the clients say it is, rather than implicitly ‘agreeing arrangements for the future’;
  2. In the Canadian and Ontario contexts, background information and resources can be found at the websites of the federal Department of Justice and the Ontario Ministry of the Attorney General; and
  3. Among other websites in Canada that can help with finding a mediator near you are the Ontario Association for Family Mediation and its Ottawa chapter.

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How mediation can help in transborder parental child abduction

Sabine Walsh

Sabine Walsh is a certified International Family Mediator based in Ireland and reports on how mediation can support parents in cases of international parental child abduction, “where one parent brings the child or children to another country, often their country of origin, without the other parents’ consent“.

Mediation however offers a number of specific advantages to parents in the context of a child abduction case. One of these relates to the scope of the dispute. In general, in cases taken under the Hague Convention on the Civil Aspects of International Child Abduction (1980), to which 86 countries are parties, the only issue that can be decided by the court is whether the child or children should be returned or not returned to their state of habitual residence. This means that the court has no jurisdiction to decide any other matters relevant to the future of the family, such as custody, access, maintenance or any other matters that might require a decision in order for the family to move on. A new set of proceedings to decide such matters must be commenced in the relevant state, depending on where the child and the parties will live. This means, in effect, that at least two sets of legal proceedings in two different courts, possibly in two different countries will be required to regulate the circumstances of the family after the abduction. In mediation however, the scope is determined by the parties, not by legal rules, and therefore all matters relating to the dispute can be addressed. In practical terms this means that the parents can address not only where the child or children will live, but all other arrangements such as contact with the non-resident parent, a parenting plan, and financial matters. Not only will this save the family time and money, but it can significantly reduce the stress on everyone, in particular the children. (emphasis added)

She also identifies best practices in international family mediation:

The first hallmark of international family mediation is that it is carried out by co-mediators. The co-mediation team should ideally consist of one male and one female mediator, one from each of the parents’ countries, and one being from a legal and one from a psycho-social background. This is not always achievable but at the very least, one mediator should be from each of the parties home countries. In an Irish-German family, for example, one mediator should be Irish and one should be German. Both joint sessions and caucuses are used in this type of mediation, and sessions are usually scheduled over a period of three days approximately. Very importantly in cases of child abduction, arrangements are often made for the left behind parent to have contact with the child at some stage during, though not actually in the mediation. The voice of the child or children will usually be brought into the mediation, either directly or by means of an interview with a third party such a psychologist or social worker. The parties legal representatives are actively involved at all stages, particularly when it comes to drafting the agreement, and translators or interpreters may also sometimes be used, though it is generally preferable if a common language can be found to mediate in.

You can read Walsh’s entire report here.

Related articles
  • Overseas child abductions on the rise (guardian.co.uk)
  • Stolen Scottish children let down by law (express.co.uk)

Self-represented litigants now permanent part of justice system

Last Tuesday, May 7th, the report of an 18-month research project that examined the experience of 259 self-represented litigants in Ontario, Alberta, and British Columbia was released.

Professor Julie Macfarlane

Author of the study, Julie Macfarlane, a law professor at the University of Windsor, notes:

“People aren’t doing this because they woke up one morning and thought, ‘I think I fancy myself as (TV lawyer) Perry Mason [...] ”They’re doing it because they cannot afford to pay a lawyer. This isn’t about choice: this is about necessity.”

One of the report’s key recommendations is the need to recognize “that self-represented litigants — by necessity — are now a permanent part of the justice system.”

Flowing from this central recommendation are related proposals:

  • “develop[...] low-cost support services for [self-represented] litigants, many of whom simply want guidance and coaching
  • “the law community [should] consider creating more choices for clients in accessing lawyers — in particular in the financial structure of legal services [and]
  • [there should be] “an “open­-minded re­-examination” of the rules that protect the role of lawyers while limiting the roles of other legally trained professionals.”


 The complete Canadian Press news report of this study can be read by clicking here.

Tax information for families in Ontario

One of our favourite sites for information about family law in Ontario is called Family Law in a Box. Just today, the site published a useful list of tax credits that may be available for families in Ontario:

1. Child Tax Credits - This federal credit can save you up to $329 for each child under the age of 18.
2. Canada Child Tax Benefits - The federal CCTB is calculated for July to June yearly and could bring in to a low-income family with two children up to $555 in additional savings.   [...]
3. GST Credit:  This federal tax-free quarterly payment helps individuals and families with modest income offset all or part of the GST that they pay.  To receive the GST credit you have to apply for it every year.
4. Child Fitness and Art Tax Credit – At the federal level, for each child under 16, parents may claim a tax credit of up to $500 registered in a sport like ballet, hockey and soccer and another $500 for artistic and cultural activities, like art or music lessons.  In addition, the Ontario government offers the Children’s Activity Tax Credit where you can claim up to $526 in eligible expenses and get up to $52.60 back for each child under 16.  You can receive up to $105.20 back for a child with a disability who is under 18.
5. Universal Child Care Benefit – The federal UCCB provides families with $100 per month for each child under the age of 6 or $1,200 per child, per year.
6. Eligible Dependant – If you were a single parent during 2012, you may be able to claim an eligible federal dependent tax credit for one of your children which is equivalent to claiming a dependent spouse.  However, whether or not you receive spousal support you are entitled to this credit.  [...]
7. Child Care Education – Child care expense can be claimed to the federal government when you hire a babysitter or put your child in a daycare or summer camp to enable you to go to work (or attend school).  If you enrolled your child in a fitness program or summer camp, which operates during the hours you are working, then you must first claim the cost as a childcare expense.
8. Medical Expenses – Save your receipts whenever you buy glasses for your children or take them to the dentist as you may claim them at the federal level.  If you have a group health insurance plan at work, then only the portion that is not reimbursed is available for you to claim.
9. Child Disability Benefit - The federal and provincial governments provide child disability benefits.  If you believe your child is eligible for this benefit, ask your doctor or occupational therapist to complete a Disability Tax Credit form.
10. Tuition Tax Credit  – The federal government offers textbook amount and scholarship and bursary exemptions.  Also, if your child attends a university or a private school, you may claim the applicable tax credits from the Ontario government.
You can read the entire blog post here.

When adult children return home

Brian Galbraith over at Ontario Family Law Blog had an informative post yesterday related to child support provisions in Ontario:

 What is alarming for divorced parents is that in Ontario you cannot get child support for an adult child living at home unless the child is unable to obtain employment because they are ill or are in school full time.

So what happens when your child has graduated from a post-secondary institution, can’t find work, so moves back home?  Well, child support just isn’t payable.  Look at the graphic below for some U.S. numbers on graduates moving back home:

Family law understood as a system of coercion

In an opinion piece in Minneapolis’s Star-Tribune last month, the Hon. Bruce Peterson, district court judge inHennepin County, Minnesota, writes that it is time “to consider taking divorce out of the hands of lawyers and judges and putting it in the hands of the parties and whatever advisers they choose.”

The worst feature of the current system[family law] is the conflict it generates. We call it an adversary system, but a better term would be a coercion system. The parties bash each other in order to persuade the judge to coerce the other person to do something they don’t want to do.

A wise friend of mine, a psychologist, once told me that the normal response of a healthy adult when faced with coercion is to resist. Sensing impending coercion, people often come to court defensive, anxious, with their heels dug in. Despite thoughtful, creative strides by Minnesota courts to reduce conflict, the specter of coercion still haunts divorce cases and promotes conflict. And it is conflict that hurts children, regardless of the custody label.

Dan Simon, a transformative mediator who practises in the Twin Cities of Minnesota, contacted Judge Peterson:

In response to my email he wrote, “I think of transformative mediation as one of the hopeful tools in this field and believe it will have an ever more important role to play.” That email led to an exchange that resulted in Judge Peterson visiting my office, where I showed him a video of myself mediating a parenting dispute. Later he emailed me, “Thank you again for taking the time to show me your process. I am very impressed at the discipline and subjugation of ego it requires. Let’s stay in touch, big changes are coming.”

Transformative mediation connected with courts?

With reference to this question, here’s an excerpt from a guest post that appeared a couple of days ago on Dan Simon’s blog:

There are times when we are asked to take cases that the judges have previously heard. The judges know these cases will be difficult, and there is very little that they can do to find a lasting solution. These repeat cases are not really about the auto repairs, the shared driveway, the broken fence, the daycare contract or the loud noise. The problem is the crisis in the interaction between the disputants. They are not able to talk to one another so they call the police or file a suit. When given the opportunity to sit down with the other in mediation, transformative mediators support the participants’ conversation in ways that enable them to regain their own strength and clarity to make decisions and their ability to respond to one another in a way that allows them to move forward.

Some people feel that transformative mediation’s lack of apparent structure precludes ordered progress. Actually, transformative mediation does have structure in which participants are introduced to the context of the mediation, explore the situation and possible options, deliberate and make informed decisions. Transformative mediators support participants as they exercise self-determination in how, and in what order they wish to work through this process. Our experience would suggest that this takes no longer than in other mediation frameworks.

Read the whole blog post here.

Canadian Same-Sex Marriages of Non-Residents May be in Doubt

In responding to a court application for divorce of a same-sex couple married in Canada, a federal government lawyer has taken the position:

  1. Non-resident couples who marry in Canada “must live in the country for at least a year before they can obtain a divorce“; and
  2. Canadian same-sex marriages are only legal if they are legal where the couple resides.

In this particular action, one of the parties lives in Florida and the other in the United Kingdom, and could not have legally married in either of those jurisdictions.

The implication is that many of the same-sex couples who travelled from abroad to Canada to marry since 2004 are not legally wed.

The mechanics of determining issues such as tax status, employment benefits and immigration have been thrown into legal limbo.

Read the entire news report of this case on-line in The Globe and Mail.

Varying Spousal Support Arrangements

English: Supreme Court of Canada building, Ott...

Supreme Court of Canada (Image via Wikipedia)

The Supreme Court of Canada handed down two decisions yesterday that “ruled spousal support arrangements can only be changed if the spouse who is paying can establish a genuine, significant and unexpected change in circumstances“.

Professor Nick Bala of Queen’s University, a well-known family law expert, says:

In these tough economic times, these are important decisions and this is significant. The rulings emphasize the importance of careful consideration before a separation agreement is signed. In particular those who agree to pay spousal support will have real difficulty is seeking a reduction if their financial situation changes.

There’s more information about these decisions in this report in the Globe and Mail and associated links.

Polygamy, Serial Monogamy, and Support Arrangements

William Leckey, Associate Professor of Law, McGill University

In the wake of Wednesday’s decision by the Supreme Court of British Columbia upholding the constitutionality of the Criminal Code’s ban on polygamy, the Globe and Mail today publishs an interesting commentary by McGill University law professor, Robert Leckey.

Leckey points out that there’s an interesting parallel in terms of economic impact as between polygamy and mainstream forms of marriage.

[...] men in polygamous unions may have more children than they can support and may induce economic dependence in more women than they can support. The result is women and children with insufficient resources.

While polygamy may be likelier than other arrangements to lead to more dependants than a breadwinner can support, the problem of unmanageable support duties is widespread. It often arises when someone still supporting children and a spouse from a former relationship assumes new family obligations.

[...]

[...] divorce makes it socially acceptable for men to remarry and have more children while the first wife is still living. Divorce also makes it more likely that a man may become the breadwinner for one woman, while still supporting another made dependant by a previous union.

The key difference between polygamy and the successive families enabled by divorce is timing. Polygamy leads to multiple wives and children simultaneously. Divorce leads to multiple wives and children sequentially. The economic problem in both cases is multiple dependencies and the need for support at the same time.

The increased social acceptability of unmarried cohabitation has made successive families even easier, as repartnering no longer requires the formalities of divorce and remarriage.

Leckey poses the trenchant question when will Canadian law and policy catch up to the reality that many Canadians have multiple living partners (albeit sequentially) and that many Canadian children have more than two parental figures in their lives.

Read his entire commentary here.