BarTalk | October 2017

CO-PARENTING RELATIONSHIP | CHILDREN’S VIEWS | SPECIALIZED MEDIATION

O CTOBER 2017 | bartalkonline.org

Family Law

news BARTALK EDITOR

Deborah Carfrae EDITORIAL BOARD CHAIR

Kirsten McGhee

EDITORIAL BOARD MEMBERS

Eryn Cunningham Tina Dion, QC Brandon Hastings Kuldip Johal Kevin Kitson Lisa Picotte-Li Donna Turko Sean Vanderfluit

BARTALK SENIOR EDITOR

Carolyn Lefebvre

STAFF CONTRIBUTORS

Gina Blaeser Travis Dudfield Kent Hurl Christopher LaPrairie Michelle May Sanjit Purewal Stuart Rennie Jennifer Weber Judy Yen The BC Branch of the Canadian Bar Association, 10th Floor, 845 Cambie St. Vancouver, BC V6B 5T3 Tel: 604-687-3404 Toll-free (in BC): 1-888-687-3404 bartalk@cbabc.org

BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at bartalkonline.org. © Copyright the British Columbia Branch of the Canadian Bar Association 2017.

This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel.

The British Columbia Branch of the Canadian Bar Association represents nearly 7,000 BC members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.

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BARTALK / OCTOBER 2017

BOOK REVIEW

Why Do Families Change?

Our First Talk About Separation and Divorce One of the hardest things to do as a parent is to tell your children that you and your spouse are separating.

Now there is a new book by Victoria, BC psychologist Dr. Jillian Roberts that helps parents have that conversation with their children, called Why Do Families Change?

For family law lawyers, the book is a useful aid to give to clients to help navigate one of the hardest moments of their lives. The book is multi-cultural and LBGT friendly, with beautiful illustrations accompanying each talking point.

The book’s goal is taking technical legal jargon, such as “common-law relationship,” “divorce,” and “separation” and explaining the terms in plain language. The book answers basic questions that every child has when hearing that their parents are getting divorced: is it my fault? – no, it’s not. Will I still see both parents? – yes, you will now have two places where you live.

The book gives parents an opportunity to explore a child’s feelings, whether they are sad, scared or angry. As to be expected from a psychologist, the author reassures children that these feelings are normal. The book encourages parents and children to talk and it opens the door to a positive future by reassuring children that restructuring the family unit is not the end of things but the beginning of new traditions and new relationships.

The book acknowledges that change is difficult for everyone and it takes time for children and adults alike to feel better after a separation. The author says: “Your family may look different now, but the love they have for you will always be the same.”

Overall, the book is a useful tool for explaining to children that the world is different, but not worse, when their parents separate. The book is published by Orca Books and is available now.

— by John Nelson, family law lawyer at Hutchison, Oss-Cech, Marlatt

Write Us Send your Letters to the Editor to: Deborah Carfrae – BarTalk Editor bartalk@cbabc.org

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OCTOBER 2017

VOLUME 29 / NUMBER 5

Contents

Departments

4

FROM THE PRESIDENT A New CBA Year Begins

by Bill Veenstra

5

EXECUTIVE DIRECTOR Breaking Down Barriers and Building Bridges

by Caroline Nevin

6

PRACTICE TALK Changing Perceptions

by David J. Bilinsky

7 8

DAVE’S TECH TIPS NOTHING OFFICIAL r Goose-Step’s the New Step Today r

by Tony Wilson, QC

Sections

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SECTION UPDATE Family Law – Vancouver Family Law – Fraser Valley Family Law – Nanaimo Family Law – Westminster Wills & Trusts – Vancouver

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CHILDREN’S VIEWS

by Arlene H. Henry, QC and Mary Mouat, QC

Features 12 IMPROVING ACCESS TO JUSTICE

THROUGH UNBUNDLING

by Kari D. Boyle and Zahra H. Jimale 13 VIEWS FROM THE BENCH

by The Honourable Mr. Justice Butler,

The Honourable Mr. Justice Groves, Master Scarth 14 PLANNING FOR THE FUTURE OF A

CO-PARENTING RELATIONSHIP

by Anahita Tajadod 15 FAMILY LAW ARBITRATION UPDATE

by Michael Butterfield 18 HAVING BABIES FOR SAME-SEX COUPLES

by Russell S. Tretiak, QC and W. Laurence Scott, QC 19 SPECIALIZED MEDIATION

by Audra Bayer 20 THE BEAUTY IS IN THE EYE OF THE BEHOLDER

by Carol Hickman, QC 21 BC FAMILY JUSTICE

by Brandon Hastings

Inside This Issue Change and choice are at the heart of this month’s Family Law issue of BarTalk. Many of the feature articles focus on options available to people dealing with family law issues – from alternative dispute resolution processes such as mediation/arbitration to making better use of Judicial Case Conferences – and highlight the advantages and disadvantages of those options.

Of note, Audra Bayer discusses circumstances where choice in process has historically not been offered, such as where family violence is a factor, and details how this can further victimize the vulnerable party by depriving that person of choice and control. Along with this focus on client options, inside you will also find ideas for innovation in family law practice, including unbundling services for clients, and making use of the various resources available to assist with family matters, including the services of professionals such as child specialists and parenting coordinators, to best assist clients to resolution.

News and Events 2 22

23 24

25

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Book Review – Why Do Families Change?

2017-2018 Executive Committee 2018 Lawyers Show Bench & Bar Dinner Form CBABC WLF News Indigenous Legal Issues by Frances Rosner CLEBC Update BC Legislative Update Branch & Bar Calendar Pride Parade Photo Tips from Courthouse Libraries BC BC’s Legal History by Hamar Foster, QC

27 28 29 30 31

Also In This Issue

LAW FOUNDATION OF BRITISH COLUMBIA PROFESSIONAL DEVELOPMENT DISPLAY ADS BAR MOVES NEW MEMBERS

Click here for LEGAL OPPORTUNITIES and ads OCTOBER 2017 / BARTALK

3

FROM THE PRESIDENT BILL VEENSTRA

A New CBA Year Begins

Challenges and Opportunities in 2017-2018

D

ay one of my term as Branch president comes with a series of deadlines, including the submission of my first of six columns for BarTalk. The year ahead will be filled with a number of challenges, but also with many opportunities and I am eager to move forward on a number of fronts.

As vice-president and chair of the CBABC Government Relations Committee, I was heavily involved in preparing the Agenda for Justice the Branch released in advance of this year’s provincial election. It was a pleasure working on this project with my predecessor, Michael Welsh, who was a tireless advocate for our justice system, as well as the many other volunteers who helped promote the needs of our justice system during the campaign. The NDP made a number of commitments in this area – even before the extent of the budget surplus was known. A key goal for our advocacy efforts in the year to come will be to work with the new government to ensure that the needs of the justice system are a priority and necessary funding is allocated, and to provide assistance and cooperation where appropriate as new initiatives are implemented.

I also intend to focus much effort on ensuring that the CBA BC Branch continues to meet its evolving member needs. It is important to ensure that our programs and services provide value to members across the province.

In 2016, the CBA nationally adopted a new strategic direction, and work to operationalize that new direction has been under way throughout 2017. That work includes a review of our member products and services both at the national and Branch levels in order to ensure that everything we do meets important needs of our members. The results of that

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BARTALK / OCTOBER 2017

review will be implemented during the course of the upcoming year. While change is necessary, it will be important to ensure that our members understand what is and is not changing and how changes will improve the CBA. Personally, what drew me into my long-term involvement and commitment to the CBA was my Section involvement as well as my ability to be part of law reform through the Branch Legislation and Law Reform Committee.

I suspect that every member has slightly different reasons for belonging to the CBA. We need to ensure that the activities we offer both nationally and at the Branch level provide the greatest value to as many members as possible at a reasonable cost.

Speaking of change, we are in the midst of implementing significant changes to the governance of the CBA at the national level. Starting September 1, 2017, we have a new

more streamlined national board and committee structure. Centralized, in-person “national Council” meetings were eliminated last year, replaced by an AGM, which allowed for member participation from hubs across the country. Those changes did not affect Branch governance, although many Branches have begun to review their own structures over the past year. The BC Branch has already begun to review its committee structure, and we will look more broadly at our own governance structures over the upcoming year.

One other important initiative will continue this year. In January 2017, the BC Branch launched a working group to determine how our Branch should respond to the calls to action of the Truth & Reconciliation Commission. That working group, chaired by Tina Dion, QC, is working cooperatively with similar groups established by the Law Society and CLEBC. I look forward to continuing to support and work with the CBABC Working Group.

I look forward to working with all of you, and am always happy to hear your thoughts and comments at president@cbabc.org.

Bill Veenstra

president@cbabc.org

EXECUTIVE DIRECTOR CAROLINE NEVIN

Breaking Down Barriers and Building Bridges

The profession of the future: colourful, diverse and culturally awake

A

passing smile between us – me, a middle-aged white woman out for an evening dogwalk, and she, a younger south-Asian passenger of her male, likely husband, driver. He was delivering for one of the many restaurant-order apps so popular in Vancouver these days, earning only whatever tips his customers provide, with her by his side. My version of the story is perhaps more romantic than the truth, but in that moment I felt so warmed by the thought that she was keeping him company in this lonely late-night work.

It made me think about all the people we meet in our lives who are doing whatever is necessary to get by, despite having much higher qualifications and expertise than they presently have the opportunity to use. I have certainly met many legal professionals who have struggled or are currently

striving to regain their earned status from elsewhere – including Dennis J.K. Nkojo, who wrote so passionately about this in his article in August’s BarTalk. There is no question that we sometimes fall far short of our billing as “the most welcoming nation on earth” when it comes to internationally-trained lawyers. So, here in BC, we are looking closely at the possibility of following Alberta’s lead and creating an Internationally-Trained/NCA Lawyers Section to provide support and resources to help. (If you’re interested in this idea, let us know!)

Even among those educated in Canada, there are many real-life stories of barriers and bias experienced by people of colour or indigenous heritage, people with obvious or invisible disabilities, and people whose gender identity, sexual orientation or religious affiliation doesn’t match that of those doing the hiring.

The CBA works hard on these issues (cba.org/equality) not just

because lawyers have always been at the forefront of discrimination battles, but also because we know that the privilege of being a self-regulated profession with a protected scope of practice is a social contract that requires the confidence of all parties. There is no question that our contract-holder – Canadian society – is demanding a legal profession that truly reflects and respects the people it serves.

One of our major initiatives here in BC is the CBABC Truth and Reconciliation Working Group (“TRWG”), chaired by Tina Dion QC, Chair of the CBABC Aboriginal Lawyers Forum and current Aboriginal Lawyers Representative on the CBABC Executive Committee.

The TRWG was created in November 2016 and formally launched by then-President Michael Welsh and then-Vice President Bill Veenstra, at a January 2017 Provincial Council meeting with Grand

Chief Ed John presenting on the importance to the legal profession of the Truth and Reconciliation Commission’s Calls to Action. The work of the TRWG has been non-stop since then, focusing on how the CBABC can implement those Calls to Action that are justice-related, fall within the mandate of the CBABC, and are within provincial jurisdiction.

There are currently 20 TRWG members, eight of whom are Indigenous lawyers, with representation that includes crosspollination with other legal groups working on these issues, to ensure coordination and greater impact from our collective work. Each member is active on at least one of six sub-committees, with established Terms of Reference and mandates focused on specific themes in the Calls to Action (e.g. professional development, advocacy, etc.). The TRWG is working toward presenting a report and recommendations for action to Provincial Council in January, incorporating all of the sub-committees’ work.

Tina welcomes anyone interested in this work to contact her directly at tina@tinadionlaw.com.

Caroline Nevin

cnevin@cbabc.org OCTOBER 2017 / BARTALK

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practicetalk DAVID J. BILINSKY

Changing Perceptions Staring into the void…

So, here we are staring into the void The old way of thinking has been destroyed You need to just accept the fact That an open mind has the biggest impact. r r

W

– Music and Lyrics by David Sanchez, recorded by Havok

hat will be the impact of technology on the legal profession? That answer has much to do with whom you ask and the time frame being referenced.

According to an article in The American Lawyer: “If all currently available legal technologies were universally implemented today, the change would reduce lawyers’ hours at large firms by 13%, according to estimates by Frank Levy, a labour economist at the Massachusetts Institute of Technology, and Dana Remus, a professor at the University of North Carolina School of Law.” However, Futurism.com, states: “A new analysis from Deloitte Insight states that within the next two decades, an estimated 114,000 jobs in the legal sector will have a high chance of having been replaced with automated machines and algorithms. The report predicts “profound reforms” across the legal profession with the 114,000 jobs representing over 39% of jobs in the legal sector.”

What can we conclude from these statements?

Technology is disruptive. The parable of the boiling frog is applicable here. However, since the threat of technology is not imminent, partners do not perceive the danger posed by such technologies and hence display an inability or

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BARTALK / OCTOBER 2017

unwillingness to react to or even be aware of the threats. Lawyers also have a false sense of protection due to the perceived inability of non-lawyers to practise law.

However, technology changes faster than law and ethics. Case in point: LegalZoom.com is a disruptive innovator that operates in three countries and has provided legal services to close to four million customers – and it is not a law firm. Ross, the IBM artificial intelligence legal service, was developed by people with backgrounds in neuroscience, information systems, software development and natural language processing. Change is being driven by skilled people with backgrounds that don’t include law. You can bet that they are aiming for the highest-value services provided by lawyers, since that is where the pot of gold lies at the end of their rainbow.

Disruption has already happened to other businesses. In Forbes, John

Kotter looked at the Kodak downfall and found that on the surface, it did not move into the digital world well enough and fast enough. John asked: “Why did Kodak make the poor strategic decisions they made?... Answer: The organization overflowed with complacency.”

Management at Kodak did not take decisive action to combat the inevitable challenges that were recognized as emerging but not acted on.

There are parallels with Kodak. In many firms, partners are already busy and don’t see the need to take action on change that might involve disrupting their money tree.

Of course, once 20 firms start doing something new then partners’ heads may pop up from the sand.

Until then, there is no perception that circumstances tomorrow will be any different from what they are today and hence there is no need to think about what is ahead.

But the power of change cannot be underestimated. Jane Wurwand Continued on page 7 >>> The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

David J. Bilinsky is the Practice

Management Advisor for the Law Society of British Columbia.

Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com

GO ONLINE FOR MORE INFORMATION

dave’s techtips How do you innovate with technology?

Here are some ideas to get you started:

uuu KARL PFISTER-KRAXNER IN “THE PARADOX OF INNOVATION IN THE TECH SECTOR” (blog.gfk.com/2016/11/paradoxinnovation-tech-sector/)

states that you should put the end customer – not the technology – at the heart of the creative process. He states that there are three key elements to successful innovation: First, you need a deep understanding of the end customer and the evolving market landscape. You need to be able to cut through the noise to capture where your potential customers and the market are heading.

Second,

you need to craft meaningful and relevant propositions that resonate with buyers within your segment. Even the most original idea won’t succeed if it doesn’t meet a genuine need.

Third, you need to bring your proposition to life using “experience design.” Be sure to create a meaningful and memorable experience for customers.

Legal clients are calling for innovation and greater efficiency in the legal space. Searching for ways to use technology to deliver innovative and lower-cost services (while preserving your profit margin) is one area ripe for change.

uuu KEVIN CASEY IN “HOW TO INNOVATE IN A LOW-TECH INDUSTRY” (networkcomputing. com/networking/how-innovate-lowtech-industry/1580428516)

looked at new tech in an oldfashioned foundry casting business – one that is not well known for its early adoption of

information technology. In Bremen Castings, he found: “It’s all part of an organization where IT is very much woven into the corporate fabric... Three generations of family ownership have treated tech as a priority rather than an afterthought.

“The owners are very technically savvy people,” Sweet said. “It’s not just networking and computers and whatnot – we also have video security, passcard access systems, electronic timeclock systems, and that type of thing. [IT] isn’t just for production manufacturing. Technology is permeated throughout the entire company, and that’s primarily owner-driven.”

uuu AMANDA C. KOOSER IN “HOW DOES TECHNOLOGY IMPROVE A BUSINESS?” (smallbusiness.chron.com/technology-improve-business-2188.html)

states that there are several areas where technology can improve how a business operates. Communication, Marketing, Productivity, Customer Service, Telecommuting and Teleconferencing are six “low-hanging fruit” areas where technology innovations can benefit a business and improve operations. © 2017 David J. Bilinsky

Continued from page 6

in the Huffington Post stated: “The feeling of consistency may appeal to many because it feels safe. But, in business at least, staying in the same place and doing the same thing is not safe.

In fact, it’s quite the contrary, it’s dangerous.”

There is no question that entrepreneurs are busy innovating in the legal space with disruptive technologies at their side. Within

law firms, the old ways of thinking are dangerous. For us lawyers to avoid becoming irrelevant, keeping an open mind regarding technological change will have the biggest impact.

OCTOBER 2017 / BARTALK

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nothingofficial TONY WILSON, QC

r

Goose-Step’s the New Step Today r

Springtime for Hitler

W

hat can you say when the President of the United States panders to Tiki-Torch bearing Neo Nazis, the KKK and white supremacists who marched in Virginia in August, other than America has gone mad. Or Trump has.

Even the Washington Post and the New York Times are now calling Trump The Mad King.

It’ll be old news by the time you read this, but after Trump’s initial milquetoast condemnation of racism, he went off-script and said that some “very fine people” were walking armband-inarmband with all those angry white men waving Nazi flags and giving Nazi salutes while chanting “blood and soil” and “Jews will not replace us.” Then Trump doubled down, alleging that there was violence “on both sides” despite the fact that a Neo-Nazi killed a counter-protester with his car. The only people who liked what Trump said were Richard Spencer, the white supremacist leader, and David Duke, the former Grand Wizard of the KKK. Unfortunately, Trump can’t defend Neo-Nazis, the KKK and other white supremacists or engage in moral equivalency between Neo-Nazis on one side and everybody else on the other, unless he has a screw loose or he’s sympathetic to them. Or both.

As Seth Myers pointed out, even the owners of the Tiki Torch Company condemned the Nuremberg-esque use of their backyard torches at the rally.

It’s really easy. Unless you’re singing, dancing or marching to “Springtime for Hitler” from The Producers, “very fine people” don’t sing, dance or march with Nazis. Period.

Most of the bigots hated Jews, Muslims and Blacks (and anyone else who wasn’t a card-carrying member of their “master race”) and wanted the US to return to the days of the genteel antebellum south.

(You know, when Blacks were slaves

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and not respected former presidents.) Others protested US immigration policy; fearful that Mohammed the neurologist was coming to steal their jobs at Walmart. Clearly, the biggest problem in the United States right now are angry white bumpkins in search of scapegoats and victims. (r Lookout! Here comes the master race.r ) As for Trump, I sense he’ll either be impeached or removed under the 25th Amendment to the United States Constitution, within a year.

In fact, CBC Radio’s Day 6 features a weekly “Impeach-O-Meter” segment, providing a weekly score of the likelihood of impeachment, based upon Trump’s previous week’s tweets and conduct.

Perhaps someone should run a Trump impeachment pool instead of a hockey pool this year.

On the bright side, I think we’ve learned a few things this year.

First, the rule of law matters, and it’s all the more important to defend it when it is under threat

by those who don’t respect it.

Whether it’s Russia, China, Turkey, Egypt, Iran, Poland, or even the United States, the rule of law is fragile, and we only see how fragile it is when it is under attack.

Second, a vote in a democratic election is profoundly important. Failure to vote has unintended consequences and can result in chaos. If, as they say, chaos is a ladder, then failure to vote conceivably allows NeoNazis, white supremacists or their apologists to climb that ladder. It’s trite but true: the only thing necessary for the triumph of evil is for good men and women to do nothing.

Third, we should encourage defenders of the rule of law and civil society to enter public life and to serve. To that end, we should strongly encourage members of our profession to get more involved politically at the municipal, provincial or federal level; to run for positions within the CBA; and to run for election as Benchers of our Law Society.

Finally, anyone that attends a white supremacist rally is going to get filmed. Their photographs or videos will be all over the Internet and on the news and they will likely lose their jobs, if they have jobs.

And I suppose, that’s one good thing about the Internet.

Tony Wilson, QC is a franchise lawyer at Boughton in Vancouver and a Bencher of the Law Society.

The views expressed herein are strictly those of Tony and do not reflect the opinions of the Law Society, CBABC, or their respective members.

feature ARLENE H. HENRY, QC AND MARY MOUAT, QC

Children’s Views Why they matter in court and in mediations

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n June of 2014, we wrote a feature for BarTalk called “Children’s Voices in Family Law Disputes.” That article spoke to the legislative requirement that parents, the courts and others “consider the child’s views, unless it would be inappropriate to consider them” (section 37(2)(b) of the Family Law Act [“FLA”]).

There has been a steady increase in the number of Hear the Child (“HTC”) reports being requested province-wide. These reports are effective tools for parents, mediators, lawyers and judges to use when making decisions on parenting plans for children.

Counsel, mindful of their responsibilities under sections 8(3), 37(1) and 37(2)(b) of the FLA, should ensure that evidence as to the child’s views is always before the courts.

Absent calling a child as a witness or presenting a child’s evidence by way of affidavit, there are three ways evidence of a child’s views can be put before a court under the FLA:

Section 37(2)(b) – the child’s views;

Section 211(1)(b) – the court may appoint a person to assess the child’s views; Section 202 – the court may allow hearsay or give directions on how a child’s evidence is to be received; and,

Section 224(1)(b) – the court may order that a child meet

with a non-evaluative interviewer and a Report prepared as a “specialized service.”

The court’s authority to order a HTC report is found in section 37(2)(b), section 202 and section 224(1)(b) of the FLA. Master Bouck in E.A.B. v. K.J.B. 2016 BCSC 1167 succinctly captures the difference between a non-evaluative HTC report and an assessment under section 211 report: [26] As now enshrined in the FLA, a child at the centre of a parenting dispute has a legal right to be heard by the court: B.J.G. v. D.L.G., 2010 YKSC 44. The child’s views with respect to parenting issues may be expressed to the court indirectly or directly. One method of receiving those views indirectly is through a Hear the Child report.

This type of report does not provide an analysis of the child’s views as they might impact parenting arrangements or responsibilities. Nor does the author of the report make any recommendations with respect to parenting of the child.

[27] In contrast, a report ordered under s. 211 is intended to be a more comprehensive investigation of parenting issues and may include recommendations on the parenting arrangements that

will meet and promote the best interests of the child. A s. 211 report is not ordered in every family law proceeding involving children….

If parents are unsure of or disagree about the child’s views or wish to provide the child with an opportunity to speak privately with someone about their views, a HTC report is appropriate.

Members of the Hear the Child roster have specific training in interviewing children and are guided by practice guidelines, which were issued by the Hear the Child Society Board in 2016.

These guidelines are being adopted across Canada and are designed to ensure that judges, lawyers and others anywhere in the province commissioning a HTC Report can expect a standard, high quality product.

Children are often on the front line of their parents’ separation.

Their sense of loss, confusion and lack of control can be eased and addressed if decision makers have the means and opportunity to hear what the children are saying.

For more information on Hear the Child and children’s voices generally, please visit hearthechild.ca.

Arlene H. Henry, QC and Mary E. Mouat, QC. hearthechild.ca OCTOBER 2017 / BARTALK

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sections SECTION UPDATE

Keep Current A review of provincial Section meetings Family Law Vancouver Meetings on the Horizon 2017/2018

Family Law Fraser Valley Meetings on the Horizon 2017/2018

Family Law Nanaimo Meetings on the Horizon 2017/2018

CBABC Family Law Sections

uuuu The CBABC Family Law Sections create a stronger community of family law lawyers across BC, promoting better knowledge of family law and fostering collaboration among counsel for the purposes of better servicing clients.

To promote education and networking in the field of family law, the CBABC supports seven Family Law Sections across BC, regionally representing hubs in the Fraser Valley, Kamloops, Nanaimo, Okanagan, Vancouver, Victoria, and New Westminster.

These Sections hosted a combined 37 Section meetings/events during the 2016/2017 term, with 600+ registrants, welcoming more than 50 guest speakers. The 2017/2018 term looks promising, as these Sections have spent the summer planning meetings to meet your professional development essentials needs.

Family Law Vancouver Family Law Westminster Meetings on the Horizon 2017/2018

Wills & Trusts Vancouver Meetings on the Horizon 2017/2018

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BARTALK / OCTOBER 2017

The Family Law – Vancouver Section aims to help Section members find diverse educational opportunities and provide members with a chance to catch up with colleagues for the 2017/2018 term. The Section will be hosting a meeting that involves a prominent mediator to speak about effective counsel techniques during mediation, a business valuator from Alberta to discuss different approaches for valuing interests in discretionary trusts, and a leading business valuator/mediator

u

to provide both technical and practical tips to resolve tricky income determination issues for self-employed payers. The Section will also be hosting meetings this year that involve senior counsel offering tips for cross-examination of experts and a meeting addressing how to deal with taxation of accounts and settling costs awards. The Section will host its annual dinner in the spring, and to wrap up the year, will host its end-of-year social event in the summer.

Family Law Fraser Valley The Family Law – Fraser

uValley Section will be

hosting a few Section meetings this year, including a meeting on October 18 with guest speakers Phil Riddell, Philip A. Riddell Law Corporation, and W. Martin Finch, QC, Baker Newby LLP, who will touch on ethics and professional conduct.

In November, Kevin Dorsey will be presenting on the use of Our Family Wizard for moderate to high conflict cases. The Section is looking into arranging a Court of Appeal judge and counsel for the court to present at a meeting in early 2018.

Family Law Nanaimo The Family Law – Nanaimo

uSection is hosting a variety

of topics this year, which include the following: Access to Justice in the Family Courts, Awareness of Cultural/Religious Factors in Family Law Cases, CFCSA Cases (from the Director’s Counsel’s perspective), Family Law Practice

Management Tips/Advice, and High Conflict Litigants: Strategies for Client Management.

Family Law Westminster The Family Law – Westmin-

uster Section will be hosting

a meeting in October, with Greg Williamson, Grant Thornton LLP, who will present a primer on business valuations, discussing pitfalls that all lawyers should be on the lookout for.

Wills & Trusts Vancouver The Wills & Trusts – Van-

ucouver Section hosted four

meetings this past term, with more than 200 in-person registrants and just as many watching remotely by webinar from their homes/offices.

The Section has been busy planning a full slate of meetings for the 2017/2018 term for you.

Check your schedules and save these dates!

On October 24 – guest speaker Nick P. Smith, Legacy Tax + Trust Lawyers, will present “Tax Strategies for Estate Planners: Opportunities and Impending Changes.” On November 28,

the Section welcomes Mary Hamilton & Emma Ferguson, Alexander Holburn Beaudin + Lang LLP to present “Discretionary Trusts: Considerations and Pitfalls from a Family Law and Estate Perspective.” Turning to the new year, start your 2018 LSBC CPD reporting year on January 30th with a presentation on “Digital Assets from an Estate Planning and Estate Administration Perspective.” February 27 will welcome another speaker from Legacy Tax + Trust Lawyers, Cheyenne Reese, who will follow up the Sections October 24 meeting on tax strategies with a discussion on “US Estate Planning Considerations.” March 27 will bring an important discussion to bear, “Wills and Estates Issues for Children.” On May 8, the Section will host a joint meeting with the Estate Planning Council of Vancouver – topic TBA. Bringing the year full circle, the Section will end the term on June 5th with a presentation on “Estate Planning by Power of Attorney and Committee.”

Keep an eye out for the formal meeting notices, and register early so you do not miss the opportunity to take part in these highly sought after Section meetings.

YOUR 2017/2018 SECTION EXECUTIVE Did you know, 420+ CBA members have volunteered to lead the BC Branch’s 76 Sections this term? Do you have a topic in mind that you specialize in and are interested in presenting to members of your Section?

Reach out to the Chair of your Section(s) and discuss these and other opportunities with them. Get in touch and get involved!

OCTOBER 2017 / BARTALK

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feature KARI D. BOYLE AND ZAHRA H. JIMALE

Improving Access to Justice Through Unbundling What’s next?

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BABC Executive Director Caroline Nevin focused her December 2016 BarTalk column on unbundled legal services and said: “… there is a legitimate place for lawyers to provide their services on an ‘a la carte’ basis (also known as unbundled services or limited retainers). What that means is that a huge underserviced market is available to those with the interest and know-how to provide services in a new way that reflects a radical departure from the past practice of ‘all or nothing’ legal services.”

As the legal industry landscape changes and the number of selfrepresented people increases, particularly in family law matters, there is a greater need for innovative ways of delivering legal services to modernize the legal industry and address the access to justice crisis. Caroline Nevin identified the opportunity to connect the dots between two realities: 1) While many lawyers practising in diverse areas already provide unbundled legal services, they may not use that term and they rarely advertise these services to the public; and 2) Many clients want legal advice and representation and can afford some legal services but don’t know where to find unbundling lawyers. Unbundling allows people to pay for the legal services they can afford and make informed decisions about their legal matters. This not only benefits the individual, but also the entire justice system by reducing

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BARTALK / OCTOBER 2017

the challenges faced by courts and judges.

Fortunately, in Canada and internationally, unbundled legal services are gaining popularity among lawyers and the public. Although promotional efforts to date have focused on family law matters, in particular in the context of litigation, unbundled services can be provided in most practice areas and in all forms of dispute resolution processes such as mediation and arbitration, giving disputants the opportunity to avoid litigation and opt for non-adversarial, efficient and effective approaches to resolving disputes.

In BC, the CBABC, Mediate BC and other legal organizations collaborated over the past two years to promote and provide practical supports for unbundled legal services, including:

Family Law Unbundling Toolkit for lawyers: courthouselibrary.ca/ practice/familylaw/unbundling/ Family Unbundling Roster and Client Toolkit (unbundling.ca) Clicklaw Helpmap CBABC Unbundled Legal Services Section, now open for enrollment from all practice areas.

The first Section meeting is being scheduled for September 2017.

Looking ahead, there is still much to be done, including:

Increasing

public awareness about unbundling to close the gap between demand and supply Collaborating with law schools, PLTC and CPD providers to incorporate unbundling

Continuing to collaborate with the Judiciary Improving the current Roster and toolkits and developing new rosters and toolkits for all practice areas What can you do?

Join the new CBABC Unbundling Section Sign up for the Family Unbundling Roster

Let

colleagues, trusted intermediaries and clients know about unbundling and refer them to the resources Learn more about how unbundling could enhance your practice With every challenge comes an opportunity to make a positive difference. The access to justice crisis can be overcome with innovation and collaboration and unbundling is a great start.

Kari D. Boyle was the Project Manager for the BC Family Unbundled Legal Services Project, is the Coordinator for the BC Family Justice Innovation Lab and is a former Executive Director of Mediate BC Society. Zahra H. Jimale is the Chair of the CBABC Unbundled Legal Services Section, family law lawyer, mediator, educator, and the principal of Jimale Law.

feature THE HONOURABLE MR. JUSTICE BUTLER, THE HONOURABLE MR. JUSTICE GROVES, MASTER SCARTH AND NIKKI HAIR

Views from the Bench Making the most of JCCs

J

udicial Case Conferences (“JCCs�) are a mandatory first step in most family law proceedings in the Supreme Court and are intended to be the first court appearance for family law litigants. Much can be gained by taking advantage of the opportunity that JCCs provide.

JCCs began as a pilot project in 2002 and are now a permanent feature of family law proceedings in this court. JCCs provide the parties with an opportunity to have frank and confidential discussions about the issues in dispute with the aim of streamlining the proceedings. Where matters cannot be resolved by way of consent orders, the court will make procedural orders, including setting deadlines, to ensure the action is resolved in a timely and cost-efficient manner.

In order to make the best of the opportunity provided by JCCs, counsel should ensure that the necessary financial information is before the court, and that both they and their client are prepared to make some headway on the matters in dispute. Where the opposing party is self-represented, counsel should be prepared to assist in achieving resolution.

Addressing these in turn, first, it goes without saying that financial statements must be filed in advance of the JCC. If child and spousal support are at issue, counsel should come equipped with support calculations, using DivorceMate or

similar software, for a range of incomes indicated by the materials filed. Counsel should be prepared to explain what assumptions were used to arrive at the support figures on which their client relies.

Second, counsel should come prepared to accomplish something at the JCC. Counsel should have a sense as to what issues are appropriate for resolution, on an interim basis or otherwise, and what steps will be necessary to move the proceedings forward. Being prepared may include considering the best starting point for discussion, rather than going over background which may serve to dampen the parties’ motivation to settle. Counsel should consider preparing a JCC brief, but are reminded to keep it brief and to enhance its usefulness by providing it to the opposing counsel or party in advance, particularly if it includes an offer to settle. It is important to prepare your client as well. He or she may wish to address the judge or master directly and should be encouraged to be solution oriented rather than using the JCC to canvass historical grievances. Where the parties are unable to settle, counsel should be prepared to set

a future court date before ending the JCC, whether it is for a followup JCC or a trial date. This ensures there is an end date in sight to motivate the parties to move forward, without impeding their ability to settle matters. Counsel should have their calendars available at the JCC to facilitate this booking process.

Third, where one of the parties is self-represented, opposing counsel should be prepared to assist in furthering the settlement process.

Ensure that copies of relevant materials are made available for the in-person litigant. Be prepared

to direct him or her to resources and further assistance. This may be as simple as directing the litigant to online resources such as self-help guides by the Legal Services Society, which includes one for preparing for JCCs. Counsel may also wish to make in-person litigants aware of the VLC Supreme Court Family Order Picklist. The picklist can be used as a guide during the JCC for making orders and will allow for a more complete JCC Plan at the end of the conference.

The Honourable Mr. Justice Butler, The Honourable Mr. Justice Groves, Master Scarth and Nikki Hair, legal counsel.

OCTOBER 2017 / BARTALK

13

feature ANAHITA TAJADOD

Planning for the Future of a Co-Parenting Relationship Parent coordinators and child specialists

H

aving to co-parent children with your former partner may be one of the toughest challenges you have to deal with after separation. After all, it is likely due in part to poor communication and major and/or frequent disagreements that you decided to separate.

Co-parenting difficulties arise during the separation process and may persist even after the financial and custody issues have resolved. It is impractical and too costly to hire lawyers to commence a court application every time that there is a disagreement about decisions relating to the children.

The Family Law Act of British Columbia (“FLA”) provides for the appointment of a number of professionals who can help separated parents with issues relating to the children, namely, parent coordinators and counsellors who may be divorce coaches or child specialists.

Section 15 of the FLA provides that the court has the jurisdiction to appoint a parenting coordinator and section 6 of Regulation 347/2012 sets out the issues that fall under the authority of a parenting coordinator. Once appointed under an Order or an agreement, a parent coordinator is there not only to help parents reach mutually agreeable solutions or build consensus, but is also authorized, failing consensus, to make determinations regarding the following issues: 14

BARTALK / OCTOBER 2017

i. a child’s daily routine, including a child’s schedule in relation to parenting time or contact with parents, ii. the education of a child, including in relation to special needs, if any, iii. the participation of a child in extracurricular activities and special events, iv. the temporary care of a child by a person other than a. the child’s guardian, or b. a person who has contact with the child under an agreement or order, v. the provision of routine medical, dental or other health care to a child, vi. the discipline of a child, vii. the transportation and exchange of a child for the purposes of exercising parenting time or contact with the child, viii. parenting time or contact with a child during vacations and special occasions, and ix. other matters that are agreed on by the parties and the parenting coordinator.

Section 224 of the FLA provides that a court may require one or more parties or a child to attend counselling, specified services or programs. It also authorizes the court to apportion the fees related to same among the parties:

224 (1) A court may make an order to do one or both of the following: a. require the parties to participate in family dispute resolution; b. require one or more parties or, without the consent of the child’s guardian, a child, to attend counselling, specified services or programs.

(2) If the court makes an order under subsection 1, the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.

The parties may want or be required to work with a child specialist who is a registered professional trained in child development, psychology and assisting families going through separation. The role of a child specialist is to help parents come up with parenting plans with a focus on the needs and best interests of the child/ren. The parties may also be assisted by divorce coaches who are licensed professionals trained in the collaborative divorce/separation process. They address conflict, adjustment, and emotional difficulties through strengthening communication and problem solving skills between parties.

It is important that lawyers and parents consider the professionals that may be appointed or voluntarily engaged to facilitate a co-parenting relationship for the benefit of the children. The litigation and the separation process may end, but parents are forever.

Anahita Tajadod is an associate at Maclean Law.

feature MICHAEL BUTTERFIELD

Family Law Arbitration Update As mediation flourishes, arbitration remains stuck in the ADR toolkit

T

he 2013 BC Family Law Act (“FLA”) entrenched the use of mediation and arbitration in family law disputes. Over the last four years, mediation has flourished while arbitration remains a rarity.

Family law arbitration offers a number of advantages: Speed – The process can be started and resolved quickly. The procedures can be streamlined to reduce waste and repetition.

Efficiency – Although the parties have to pay for the arbitration, it is often more efficient than the court process.

Confidentiality – With few exceptions, arbitration takes place in private and remains private.

Finality – The arbitrator’s decision is final and binding. The right of appeal is limited and appeals are rare.

Despite the clear advantages, many lawyers and clients are wary of the process.

A primary reason is that arbitration is new to family law conflicts.

Mediation has been commonplace for the last 25 years. The efficacy of mediation is better known and more widely accepted.

Unlike judges, there is no shortage of arbitrators. Since 2013, approximately 100 lawyers in BC have qualified as family law arbitrators. In a 2016 random sample survey of qualified family arbitrators, conducted by Victoria Mediation Services (“VMS”), less than 23% of the lawyers surveyed had actually

conducted any arbitrations. Of that number, most were senior counsel or were retired from the Bench.

The VMS survey identified the most common obstacles to increasing arbitration are cost and the perceived uncertainty of outcome.

Cost is also a barrier in mediation. However, the costs of the alternative dispute resolution (“ADR”) options is offset against the savings in time, stress, and uncertainty of the court process.

Arbitration, especially when used in conjunction with mediation (Med/Arb), offers significant cost saving opportunities. The parties can steamline the process. Court dates are harder to set and have a high risk of being bumped. Waiting for trial time can take many months, while an arbitration can be set quickly.

Unlike mediation, arbitration offers finality. The courts have given arbitrators significant deference in making their awards.

However, in surveying family law practitioners, VMS found that many lawyers were concerned that an arbitrator’s decision could be easily overturned.

In explaining this deference, Judge Punnet states: “the FLA and its regulations set out specific requirements or expertise for arbitrators on family law arbitrations. This invites a greater degree of deference”

McMillan v. McMillan, 2015 BCSC 2177 (para 39).

Unlike commercial arbitration, family law arbitration can be appealed on a question of mixed facts and law, (Arbitration Act s. 31 (3.1)). Justice Punnett continues: “[44] A review on a question of mixed fact and law does not permit review of the arbitrator’s factual findings. Rather it permits a review of mixed fact and law on the standard of reasonableness, not correctness.

[54] it is not open to the court to substitute its own findings of fact for those of the arbitrator....”

SUMMARY

Family arbitration is an underutilized part of the ADR toolkit. It can provide speedy, just and cost-effective resolution to a myriad of family law disputes. It can be tailored to the specific needs of the family.

Costs and stress associated with delay can be eliminated.

Qualified arbitrators are available and making use of them can improve the process of separation for many.

PRACTICE TIPS: Use

arbitration to address interim issues such as support and disclosure. Addressing these issues early can facilitate goodwill and improve mediation outcomes.

Use arbitration for child or spousal support variations. These can be set as short hearings or document-only arbitrations.

Review the rules for fast track arbitration as this can dramatically reduce costs and lead to a speedy resolution.

Michael Butterfield is a collaborative lawyer, mediator and arbitrator.

OCTOBER 2017 / BARTALK

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OCTOBER 2017 / BARTALK

INTERNAL REVISION

1

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feature RUSSELL S. TRETIAK, QC AND W. LAURENCE SCOTT, QC

Having Babies

For same-sex couples

M

any same-sex couples have shared the dream of having children and building a family. They want to be parents and have the same joys of raising children as opposite sex parents have always had. In fact, many same-sex couples are already parents and are doing a wonderful job of nurturing and raising their children.

There are four basic ways for lesbian, gay or bisexual parents to have a child.

1. The parents can adopt a child who was born to someone else.

Couples can apply to adopt through a local authority or adoption agency. However, this process is often frustrating and time-consuming. When it results in an adoption, the sentiments are pure joy. When it fails, it can be heartbreaking.

2. The parents can conceive a child using sperm or eggs of their own and sperm or eggs donated by a third party.

3. A gay couple and a lesbian couple can co-parent a child.

This typical scenario is where a lesbian and a gay man team up to have children together, although one or the other may also be straight or bisexual. The man donates the sperm and both parties may share the rights and responsibilities for their child, as agreed between them.

Major decisions to be worked

18

BARTALK / OCTOBER 2017

out in such arrangements include: what role each parent will have and the degree of involvement each will have with the child, and, how financial costs will be managed between them.

4. They can conceive a child with the assistance of a surrogate sometimes referred to as a “gestational surrogate,” who will carry the child until birth.

Surrogacy presents two options. The first option provides for choosing a woman who serves as the source of both the egg and the uterus. She could get pregnant just with intrauterine insemination. It is not legal to pay a surrogate, but expenses related to pregnancy can be covered.

Both the future parents and the gestational carrier must sign a surrogacy agreement before conception.

However, a more popular second option would be to choose one woman as the egg donor, and a second woman as the surrogate.

The male same-sex couple needs to decide whose sperm is going to be used. Or alternatively, half of the

eggs are fertilized with one partner’s sperm and the other half fertilized with the other partner’s sperm.

For lesbian couples, assisted reproductive technology most commonly relies on one partner receiving medically assisted donor sperm insemination. Some couples might arrange for in-vitro fertilization so that one partner may donate the eggs and the other gestates the pregnancy. This way both partners can have a biological connection to their child.

To have a legally viable surrogacy agreement, both the future

parents and the gestational carrier must sign a surrogacy agreement before conception. Then a surrender agreement is concluded after the child is delivered. Neither of the gay parents have to adopt their child. They just have to register the birth and note their names as the parents on the birth certificate.

For same-sex parents wanting to have a child, the adventure can be both amazing and rewarding.

What is most important to remember is that all parents bring children into this world from a desire to love and provide a happy and healthy environment for their development and growth.

Russell S. Tretiak, QC and W. Laurence Scott, QC of Quay Law Centre – New Westminster, BC.

feature AUDRA BAYER

Specialized Mediation

Empowerment – generating options, safeguarding the right to choose

A

lterative Dispute Resolution processes breathe flexibility and hope into the legal process. This is particularly relevant in conflicts where there are concerns about power imbalances. Dr. Julie MacFarlane notes: “… there is a heated debate about the appropriateness of mediation for family disputes, much of which focuses on the systemic power imbalance between men and women in many family relationships... On the other hand, it is also argued that a consensual process in which both process and outcome can be controlled by the parties themselves is more suitable for resolving acrimonious interpersonal issues than an adjudicative one.” (Dispute Resolution, Readings and Cases).”

Many of my cases include addiction or family violence as factors, the result of a natural progression in my professional life which is rooted, most notably in that my children and I are survivors of family violence.

A significant struggle I’ve experienced both personally and professionally, is the view that mediation is not (which is different than “may not be”) an appropriate process where family violence is a factor. In my personal experience, I was never asked what I thought would be appropriate for me and my family. I was told by well-intentioned professionals what process was best for me.

As the litigation was initiated, the pattern of controlling and coercive behavior, incidents of violence, and breaches of the protection order escalated. I felt vulnerable and demeaned by the assumption that as a survivor of abuse I had somehow lost all of my power; my ability to advocate for my own best interests and those of my children; and that I had no option but to resolve my conflict which was already fraught with shame in a public forum, and particularly so given that all of this would play out in my professional backyard.

Power is not a measurable quantity. Concerns regarding power imbalances can be addressed, however, where: there is screening;

the professional has relevant training;

the professionals are live to safety (emotional and physical) and process issues;

where the individual chooses mediation and is able to negotiate effectively and productively, safely, voluntarily and competently toward a fair agreement, that choice should be effected.

This does not translate to an equal sharing of power, but ensures each party has an adequate power base to allow them to be heard and to resist any solution that

fundamentally violates their interests. Some believe that legal advocacy may yield a superior outcome but this is contradicted by the experiences of many survivors.

Professor Nicholas Bala (see full article for reference at audrambayerlaw.com/specialized-mediationcommitment-to-empowerment), in advocating for a differentiated approach, states: “There is a need for all professionals who work with families affected by separation and divorce to have knowledge, understanding and sensitivity about issues of spousal abuse. There must be awareness of the different forms, nature and effects of spousal abuse, and an ability to help develop appropriate, differentiated responses, in particular in regard to children.”

Salem, Milne & Koeffler have stated what is, in my view, the strongest argument for advocating a differentiated process for high conflict family cases where family violence or other power imbalances are present and which will not further victimize the victim: “You can also help your client identify her needs and interests, empower her by encouraging her to advocate for herself, and help her make informed decisions. This may be the first time the victim has felt she had options and choices, which are empowering. Having the options to mediate or not and to accept or reject a proposal are basic principles of mediation.”

Audra Bayer is a mediator, lawyer, arbitrator, mother and survivor of family violence, practicising with the firm of MacLean Law. OCTOBER 2017 / BARTALK

19

feature CAROL HICKMAN, QC

ADVANTAGES

The Beauty is in the Eye of the Beholder

Efficient Faster/Cheaper Private Incentive to

The Pros and Cons of Med-Arb

1

E

ach alternative dispute resolution (“ADR”) process has its advantages and disadvantages.

Mediation allows parties to create their own solution to a dispute; however, there is no certainty that the dispute will be resolved.

Arbitration provides a final resolution of the dispute; however, the parties have no input into creating the solution. Mediation-arbitration (“med-arb”) amalgamates the two processes and provides disputants with the “best of both worlds.”2 Med-arb is the most controversial ADR option. The debate regarding the pros and cons of med-arb has been ongoing for many years, with strong proponents on either side. The pros and cons of medarb often depend on what lens one looks through; what one party sees as a strength in the process, another party sees as its greatest flaw.3 Clients, counsel, judges and academics all have different perspectives and as a result, see different risks or benefits of the med-arb process. Some people see the rate of settlement, client satisfaction, impact on family harmony, and the reduction of conflict as the key criteria. Others, who take a more procedural approach, emphasize the risks to natural justice and procedural fairness and believe those risks outweigh the benefits.

Regardless, in choosing any dispute resolution process, it is most important that the parties involved 20

BARTALK / OCTOBER 2017

Settle

Caucus Confidentiality Candour Coercion Impartiality/

Med/Arbitrator

Distinct Process Natural Justice/

Flexible Specialized Finality

in the dispute make an informed decision as to which dispute resolution option is best for them.4 The choice can be made only after each party has been fully advised of the pros and cons of each ADR process. In BC, informing a disputant of their ADR options is now a fundamental responsibility of every family dispute resolution professional and is enshrined in legislation.5 Ultimately, the choice of process is up to each party and will be based on what they believe will provide the best resolution of their dispute, considering the pros and cons associated with each option. No one ADR process is right for every situation.

Lawyers and dispute resolution professionals need to be familiar with the advantages and disadvantages of each dispute resolution option, so they can cogently explain them to the parties and assist the parties in deciding which dispute resolution process is most appropriate for their dispute. Provided the benefits are seen as outweighing the risks, med-arb, in particular, is a viable dispute resolution process for many couples. If the risks cannot be addressed sufficiently, then the parties should consider other ADR options.

Here is a summary of the advantages and disadvantages of med-arb:

DISADVANTAGES

Bias

Due Process

The debate regarding the pros and cons of med-arb has been ongoing for over fifty years. Proponents on each side of the debate have strong opinions for or against the process. Depending on which lens one looks through, many of the characteristics of med-arb that are seen as disadvantages by some are viewed as advantages by those in favour of it. It is unlikely that the debate will be resolved anytime soon. Regardless, an integral component of the med-arb process is that parties considering med-arb make an informed decision about the process and are fully informed of its advantages and disadvantages. With that done, med-arb is advantageous for many couples and will result in a resolution of their dispute.

This article is a summary of a portion of Carol Hickman’s LL.M. thesis completed in 2014. To request a full copy of this article contact: cwhstaff@ quaylawcentre.com 2 Batson Baril, M. and Dickey, D., “MedArb: The Best of Both Worlds or Just a Limited ADR Option?”

3 Ibid.

4 Ibid.

5 Section 8(2)(b) of the Family Law Act, S.C.B. 2011, c. 25 1

Carol Hickman, QC, lawyer, mediator, arbitrator, parenting coordinator and collaborative law professional.

feature BRANDON HASTINGS

BC Family Justice Systematic and cultural change and the FLA

J

ust after our province’s Family Law Act, SBC 2011, c 25 (“FLA”) came into force in March 2013, the Canadian Forum for Civil Justice (“CFCJ”) called for “systematic and cultural changes to the way we resolve family conflicts,” saying that Canadian family law is “highly evolved and comprehensive... , [but] the procedures by which this substantive law is invoked are increasingly complex, unaffordable and inaccessible, [and] [w]ithout access to the mechanisms to implement them, the substantive rules have limited value.”1 The crux of access to justice issues is that however theoretically good rules are, if they don’t create practical benefit to citizens, they aren’t doing their job.

Access to Justice in family law is especially important because of the stress litigants are under while going through the system.

In 1967, psychiatrists Thomas Holmes and Richard Rahe conducted a study which ranked 43 stressful life events, and determined how they correlated with illness. Each event is also given a point value, which indicates how strongly that event correlates with illness. The most illness-inducing events on Holmes and Rahe’s Social Readjustment Rating Scale (“SRRS”) for adults

are “death of a spouse” (100 points), followed by “divorce” (73), “marital separation” (65), and “imprisonment” (63). Similarly, the SRRS for non-adults predicts negative outcomes for “divorce of parents” (90), and “marital separation of parents” (69). 2 Among other things, the FLA improved access to justice by creating a child-centric approach to resolution of parenting disputes, creating a statutory obligation for “full and true” disclosure (importantly, in Provincial Court as well), giving the Provincial Court latitude to control litigant conduct through penalties and posting of security, and creating a clear preference for out-of-court resolution.

Under the FLA, family law litigants have access to a huge array of alternative dispute resolution (“ADR”) options to avoid, embellish, or follow-through with the normal course of litigation.

Regulated ADR actors include family law arbitrators, mediators, and parenting coordinators (Family Law Act Regulation, BC Reg. 347/2012). Other “nontraditional” ADR practitioners include divorce coaches, experts on children, real estate and business valuators, the Family Maintenance Enforcement Program,

the Ministry of Children and Family Development, and lawyers who are more commonly offering collaborative divorce and unbundled (limited-scope retainer) options.

Family law in BC has taken great strides to deliver a family law system that improves outcomes of separation and divorce in adults and children. With a large array of options that don’t involve litigation, and no bestpractice guidelines on how lawyers ought to employ the various process options available to their clients, how the FLA will impact the culture around changing families in British Columbia remains in question. What is certain, however, is that a family lawyer’s role isn’t just to assist clients in resolving disputes through court, but to as much as possible help them create positive post-separation outcomes through at least the consideration, if not the use, of the other options available to them.

Meaningful Change for Family Justice: Beyond Wise Words, April 2013.

2 Wikipedia contributors. “Holmes and Rahe stress scale.” Wikipedia, The Free Encyclopedia, 12 Jun. 2017. Web. 1

Brandon Hastings (bhastings.com) is a lawyer, legal futurist, and civil and family mediator based at Quay Law Centre in New Westminster, BC. Among other things, Brandon cofounded Vancouver Legal Hackers, sits on CBABC’s Court Services Committee, and occasionally works with the BC Ministry of Justice on legal technology projects. @BHastingsLaw ca.linkedin.com/in/bhastingslaw OCTOBER 2017 / BARTALK

21

news&events 2017-2018 EXECUTIVE COMMITTEE Bill Veenstra PRESIDENT Jenkins Marzban Logan LLP Vancouver

Margaret A. Mereigh VICE-PRESIDENT

Kenneth Armstrong SECRETARYTREASURER

Crown CounselCrown Law Division Vancouver

Stewart & Company Vancouver

Michael Welsh PAST PRESIDENT

Jennifer Brun OFFICER

Sarah Klinger OFFICER

Mott Welsh & Associates Penticton

Harris & Brun Law Corporation Vancouver

Law Office of Sarah L. Klinger Victoria

Sandra Mandanici OFFICER

Lauren Chu

Tina Parbhakar

Vancouver

Tina Dion QC ABORIGINAL LAWYERS REPRESENTATIVE Tina Dion Law Tsawwassen

YOUNG LAWYERS OFFICER Crown CounselCrown Law Division Vancouver

EQUALITY REPRESENTATIVE Vancouver

Caroline Nevin EXECUTIVE DIRECTOR CBABC Vancouver

Read more

Audition for The Lawyer Show 2018 This could be your year to sing, act and dance on stage!

AUDITION DATES:

Sunday, October 22, 7-10 pm Tuesday, October 24, 7-10 pm @ Carousel Theatre for Young People (1411 Cartwright Street)

The Lawyer Show 2018 plays at the Waterfront Theatre May 3-5, 2018.

For more information email lawyershow@carouseltheatre.ca or visit www.carouseltheatre.ca/lawyershow 22

BARTALK / OCTOBER 2017

The Canadian Bar Association, BC Branch and the Law Society of BC warmly invite lawyers and judges to attend the 33rd Annual Dinner for the Bench and Bar.

Bench & Bar Dinner Join the CBABC Executive and the Law Society Benchers in paying homage to those who have made outstanding contributions to the cause of justice in BC. The Dinner will feature the presentation of the CBABC Georges A. Goyer, QC Memorial Award for Distinguished Service. Tickets are limited.

Don’t be disappointed; order early.

Name:

Date:

November 7, 2017

Time:

5:45 pm Reception (cash bar) 6:30 pm Dinner

Place:

Fairmont Waterfront Waterfront Ballroom 900 Canada Place Vancouver

Dress:

Business Attire

Ticket:

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cut here

Mail, email, or fax (fax orders require payment by credit card) your ticket order to: Canadian Bar Association, BC Branch – Attention: Events 10th Floor – 845 Cambie St. Vancouver, BC V6B 5T3 Email: events@cbabc.org Tel: 604.646.7855 Fax: 604.669.9601

Firm: Address: City:

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Guest Name: Food Allergies: Ticket order details QTY Ticket @ $110 =

Method of payment Visa MasterCard Cheque enclosed*

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Signature * Please make cheque payable to Canadian Bar Association, BC Branch

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OCTOBER 2017 / BARTALK

23

news&events CBABC WLF NEWS

Indigenous Legal Issues...

CBABC WLF Update

THE BEST INTERESTS OF THE FAMILY: An Indigenous Approach to Child Protection

Last year’s CBABC WLF program featured several high profile speakers, including prominent criminal defence lawyer Marie Henein, who presented the keynote speech at the sold-out WLF Awards Gala Dinner on April 27, where Linda Robertson was awarded the CBABC WLF Award of Excellence and the Debra Van Ginkel, QC Mentoring Award was presented to Rachel Mockler.

The AGM (June 14) marked the end of another successful year. Our speaker was our own local prominent lawyer, Dr. Constance Isherwood, QC (97 years young and still practising law) who shared with us some of her experiences during 65 years of a successful law practice.

We have already gotten our 20172018 program off to a great start. On September 18 we held our Fall Launch and ever-popular “Hot Tips” event, building on the CBABC WLF’s mandate of supporting the next generation of lawyers. September also marked the fifth year of the WLF’s proud participation in the Ovarian Cancer Canada Walk of Hope, fundraising for research and education and raising awareness of this devastating disease.

NEWS

CLEBC Update FAMILY LAW RESOURCES FROM CLEBC Meet all of your practice needs with CLEBC’s extensive collection of family law resources.

1. Start searching for the answer to your family law question with CLEBC publications, including:

24

BARTALK / OCTOBER 2017

Annotated

Despite the closing of Indian Residential Schools (“IRS”), alarming rates of Indigenous children continue to be removed from their families and placed in non-Indigenous foster homes. The reports below all point to a broken system in desperate need of repair.

Sts’ailes First Nation has decided to do things differently with te Lalem – a specialized residential home with 24-hour supports aimed at healing and keeping the family together. When child protection concerns arise, the entire family is moved into te Lalem and the live-in supports assist the family while the parents learn how to parent safely through a cultural lens. This Indigenous approach to child protection recognizes that the best interests of the child are more aptly met when the family heals from past harms caused by IRS and harmful government policies. The best interests of the family approach to child protection may be the way forward, especially in this climate of reconciliation.

Reconciling

for the Future, Summary of the Final Report of the Truth and Reconciliation Commission of Canada: trc.ca/websites/trcinstitution/ File/2015/Honouring_the_Truth_Reconciling_for_ the_Future_July_23_2015.pdf Delegated Aboriginal Agencies: How resourcing affects service delivery, March 2017: rcybc.ca/ sites/default/files/documents/pdf/reports_publications/rcy-daa-2017.pdf te Lalem (The House): stsailes.com/members/ te-lalem

Family Practice Family Practice Manual Desk Order Divorce: An Annotated Guide Family Law Agreements – Annotated Precedents Family Law Deskbook Family Law Sourcebook for British Columbia 2. Subscribe to the Case Digest Connection service for access to our archive containing all case summaries since 1996 and also receive weekly BC

by FRANCES ROSNER

notifications of recently digested family law cases sent directly to your inbox.

3. Join your colleagues on November 9, 2017 at Advanced SSAG-ing to learn all you need to know about the Spousal Support Advisory Guidelines.

For more information, call CLEBC customer service at 604893-2121 or visit cle.bc.ca today.

BC LEGISLATIVE UPDATE

ACTS IN FORCE From April 26, 2017 to August 30, 2017, there are no regulations to bring a section or statute into force.

Legislative Updates are available exclusively to CBA members at cbabc.org.

BRANCH & BAR

Calendar

OCTOBER

20-21 CBA Leadership Conference for Professional Women — Calgary, Alberta

NOVEMBER

3 Executive Committee Meeting — Vancouver 7 Bench & Bar Dinner — Vancouver 17-19 CBA West 2017 — Las Vegas, Nevada 29 Yale Bench & Bar Dinner — Kelowna

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Hakemi & Ridgedale LLP is pleased to announce the addition of

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Ms. joined thedepth to our growing commercial litigation practice in downtown firm as associate counsel and Ms. Kampman will be completing Vancouver. her articles.

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OCTOBER 2017 / BARTALK

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news&events TIPS FROM

INTRODUCING THE FAMILY LAW ORGANIZER

Courthouse Libraries BC has launched a new digital service for BC family lawyers and designated paralegals. The Family Law Organizer (“FLO”) promotes awareness of family law-specific CPD programs by aggregating key CPD providers’ course calendars in a unified, searchable calendar with events tagged by subject.

FLO also helps CPD organizers plan tentative dates for events and offers members a forum to suggest CPD ideas for courses or even joint research projects. A classifieds-style section of the tool lets members post and browse opportunities such as locums, articling positions and peer-to-peer service offerings related to family law.

FLO is the first community to join Courthouse Libraries BC’s new online platform for lawyers (currently in Beta version). FLO is overseen by a diverse steering committee of dedicated family lawyers and paralegals. Those interested in learning more and receiving an invitation to try out the free service should contact Nate Russell at nrussell@courthouselibrary.ca

BC’s LEGAL HISTORY by Hamar Foster, QC

LOOKING BACK VIII:

Constitutional Law and Expediency on the Mainland, 1858-1866 In December of 2016, I wrote about how all of Vancouver Island’s laws were found to be invalid in 1856.

I promised to describe a similar blunder on the mainland, but a number of other instalments of “Looking Back” intervened.

So here goes.

When James Douglas was made governor of BC in 1858, he was given extraordinary authority to make laws: he was a one-man legislature. But such autocracy could not last. Just before he retired in 1864, the Crown amended the colony’s Constitution, requiring Douglas to appoint a Legislative Council whose “advice and consent” would be essential for making laws. This new regime was in place by the time his successor, Frederick Seymour, took over.

However, Seymour did not want to assent to legislation prepared before his arrival, so he dissolved the Legislative Council and appointed another. He and Attorney General Henry Crease, it seems, had an incomplete understanding of colonial law.

When news of the dissolution reached the Colonial Office, Seymour was told that he could not prematurely terminate appointments made by Douglas and that all laws passed by the new Council were accordingly invalid. Alas, by the time this advice arrived, the members had finished their business and dispersed; so it was not until 1866 that a third session of the Legislative Council could be convened to pass an ordinance retroactively validating all the laws.

Seymour and Crease tried to defend their purported dissolution, but the Colonial Office was not impressed. It seems the officials there had little patience with the “obstinacy” of a governor and his attorney general “who will not own themselves wrong, and go on arguing the case; confusing... arguments of expediency with arguments of law.”

Further reading: James E. Hendrickson, “The Constitutional Development of Colonial Vancouver Island and British Columbia,” in Ward and McDonald, ed. British Columbia: Historical Readings (Vancouver 1981) at 245-74.

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BARTALK / OCTOBER 2017

grantsapproved LAW FOUNDATION LAW FOUNDATIONOF OFBRITISH BRITISH COLUMBIA COLUMBIA

Law Foundation Project Funding for Aboriginal Legal Issues At the June meeting of the Law Foundation, the Board of Governors approved some innovative projects supporting work with the Indigenous community.

The Native Courtworker and Counselling Association of BC (“NCCABC”) received a grant of $40,000 for a project entitled “Finding Solutions Initiative: Better Justice Outcomes for Indigenous Families.” The Project will work with the groups involved in the BC Aboriginal Justice Council to identify factors that contribute to the overrepresentation of Indigenous families in the child protection system, and to develop a better outcomes strategy that will help reduce the number of Indigenous families involved with the child protection system in BC. The grant will support work done in the first year of what will be a three-year project to identify barriers, propose alternative approaches, and test one of the alternative approaches proposed.

The Canadian Centre for Policy Alternatives (“Centre”) also received a grant of $40,000 for a project that will research how to align BC policy-making with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). The Centre will be working with the Union of BC Indian Chiefs to review the laws, policies and practices related to Indigenous self-determination, especially self-government, control of territory, and the right to free, prior and informed consent. It will also discuss BC’s provision of public services to Indigenous peoples (health care, education, water, infrastructure, social services, etc.). It will then assess BC’s compliance with UNDRIP, highlighting prominent examples that illustrate the current state of compliance with UNDRIP, including any policy decisions around major infrastructure and energy developments, and develop a set of policy recommendations that outline what compliance with UNDRIP would look like in BC from a legal and policy-making perspective.

In Fort St. John, a grant of $45,000 was made to the Fort St. John Women’s Resource Society to work with a governing body that represents the concerns of both Aboriginal and non-Aboriginal women in the community to develop an Emergency Readiness Plan to assist in responding to future missing or murdered (Aboriginal) women in rural northern British Columbia. The group will work with representatives from the local Indigenous community, women’s groups, local RCMP detachment and other key groups to develop protocols and identify the roles and actions that each member of the Readiness Plan Team should take if a woman or girl is reported missing.

The Foundation is committed to working with these and other projects to promote access to justice for BC’s Indigenous community. The Law Foundation’s 2018 Projects Initiative will include several areas of encouragement – one of them will be for projects that address Aboriginal legal issues, including projects that advance the process of reconciliation with Canada’s Indigenous peoples.

NOTICE TO THE PROFESSION ISSUED BY CHIEF JUDGE CRABTREE

Judicial Council Launches Online System for Appointment Applications On September 5, 2017 the Judicial Council of British Columbia launched an online application process for all judicial appointments to the Provincial Court: judges, judicial justices, and justices of the peace. As of this date, the Provincial Court will no longer accept paper applications.

For more information on the Provincial Court appointment process, see Judicial Council’s Annual Reports (provincialcourt.bc.ca/judicial-council). For more information on this initiative, see the Court’s website (provincialcourt.bc.ca/enews/enews-05-09-2017).

OCTOBER 2017 / BARTALK

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professionaldevelopment

WEBSITE: CBAPD.ORG \\EMAIL: PD@CBABC.ORG \\

CBABC Professional Development courses are designed to meet the needs of lawyers while still maintaining the opportunity to network and advance one’s career, practice and business. We pride ourselves on bringing courses to lawyers that will provide the required components of professional responsibility and ethics, client care and relations, and practice management components for 2017 Law Society reporting.

Upcoming In-Person Seminars Ethics in Action: Practice and Community – Penticton What would you do if you were facing an ethical dilemma?

Explore Ethics in Action – cases that could affect your practice and beyond!

Join the CBABC and Penticton Bar Association as we delve into the subject of ethics in an engaging way. Speakers Michael Welsh, CBABC Past President (2016-2017), Mott Welsh & Associates and Thomas Fellhauer, Okanagan District Bencher, Pushor Mitchell LLP, will identify relevant codes of conduct, put ethics into action by working together on realistic case studies, and highlight emerging ethical problems.

Past attendees comment that the most valuable aspect of the seminar for them were real life examples, and the time spent in small group discussions, as it allows attendees to feel more comfortable in sharing their opinions. This seminar will include scenarios and actionable strategies for you!

Date: November 9, 2017 Location: Theo’s Restaurant, Penticton

Speakers: Michael Welsh, Past CBABC President (2016-2017), Mott Welsh & Associates, and Thomas Fellhauer, Okanagan District Bencher, Pusher Mitchell LLP

Upcoming Webinars Serving Clients with Disabilities If you have had the honour of serving a client with a disability, you know the rewards are many. Among them is the opportunity to think creatively.

Whether you are planning a trust, considering someone’s equality rights or balancing multi-faceted issues, there are a wealth of substantive considerations.

Then there are the practice related ones: how, as a lawyer, to adapt your practice to people with differing needs and meet your professional obligations.

In this session, we will focus on these two distinctive elements: first, what substantive issues arise for people with disabilities and second, how can you ensure that your practice is evolved to meet a variety of needs.

Moderator: Meghan A. Maddigan, Law Society of BC

CBA Conference CBA West 2017 It has been more than 10 years since the CBABC Annual Branch Conference kicked off in Las Vegas.

Now, the premier legal conference in Western Canada is bigger than ever as CBABC teams up with CBA Alberta to present CBA West 2017.

Gather, network, and socialize with colleagues and leaders in the legal profession, stepping out in style on Saturday night as CBA West attendees venture to the top of Stratosphere for a special dinner event, with The Honourable Justice Russell Brown from the Supreme Court of Canada.

With 2018 upon us, there is no better time than now to hear from leading practitioners and judges on emerging legal issues, completing your mandatory 12 hours of professional development requirement for 2017.

Date: November 17-19, 2017 Location: Wynn Las Vegas Keynote: Nancy Rapoport, University of Nevada, Las Vegas Featured Speaker: Professor Michael Kagan, University of Nevada, Las Vegas

CPD On-Demand – When there are not enough hours in the day!

Are you looking to complete your mandatory CPD and ethics requirements but can’t seem to find the time?

CBABC’s CPD On-Demand offers you a wide selection of previously recorded programming with self-paced quizzes that are accessible to members and non-members. uuu Visit our newly revamped, user-friendly CPD On-Demand page today and get your access in an instant!

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BARTALK / OCTOBER 2017

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barmoves Who’s Moving Where and When Rachelle Mezzarobba

Kristian Arciaga

has become a partner at Clark Wilson LLP. Her work and dedication has resulted in many successes for their clients and for their firm.

has joined Fasken Martineau DuMoulin LLP as an associate practising in the Real Estate group.

Rajit Mittal

Bavia Bisetty

joined MLT Aikins LLP as an associate.

He is a commercial litigator with experience in claims of negligence, real property matters, including expropriation and construction claims.

joined Clark Wilson LLP as a partner in their Commercial Real Estate group.

David Jacyk

Tajinder Rathor

joined Osler, Hoskin & Harcourt LLP’s partnership and will lead their Vancouver-based tax litigation practice.

joined McCullough O’Connor Irwin LLP as an associate. Tajinder will be practising corporate and securities law.

ASSOCIATE COUNSEL OPPORTUNITY

Zargar Lawyers + Business Strategists invites you to take that crucial step toward your future goals by joining our team.

uuu Zargar.ca/careers Why do we need you?

We are expanding and transformation requires like-minded team members to help us grow together. You have been contemplating a move for some time, and we are fortunate to have the opportunity to invite you to explore what we can offer to you and your legal practice. By joining our team, you’ll play a key role in our combined and continued success.

Why should you work with us?

Regain time to grow your practice or

maintain existing client commitments

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BARTALK / OCTOBER 2017

Flexible remuneration and office

support packages to fit your lifestyle Opportunity to obtain control over your work and life Support from other lawyers and in-house CPDs Paralegal and legal administrative support Leading-edge technology Modern office décor and atmosphere located in the heart of downtown Vancouver Medical and dental benefits program Opportunity to develop, learn and grow

Things that matter to us: Relationships Inclusiveness Client commitments Transparency Tangible results Efficiency

What expertise do we require?

Corporate/Commercial Securities Corporate Finance Banking

Tax Labour and Employment

Bar Moves space is at a premium and available for free to members on a first-come first-served basis, so send your Bar Move (max. 30 words) and a high-resolution headshot photo to bartalk@cbabc.org now.

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1710.

Karianne Good joined Branch MacMaster LLP as an associate after completing her articles with the firm. Karianne’s practice will include class actions, insurance litigation and health law.

Chris Lee joined Borden Ladner Gervais LLP’s Vancouver office as an associate.

He will be practising infrastructure, construction, procurement, business and corporate commercial law.

Avichay Sharon joined Branch MacMaster LLP as an associate practising primarily in the areas of class actions and insurance litigation. Avichay was serving as a Judicial Law Clerk to the Supreme Court of British Columbia before joining Branch MacMaster.

Alex Bayer joined Koffman Kalef LLP’s Securities, Corporate Finance and Mergers & Acquisitions group. Alex was formerly with Goodmans LLP followed by two years practising as a sole practitioner.

Banreet Garcha joined Koffman Kalef LLP’s Corporate Commercial group as an associate.

newmembers July & August 2017 Lawyers Gregory Brown Sangra Moller LLP Vancouver Ariane Brunet Miles, Zimmer & Associates Cranbrook Preet Gill ICBC Vancouver Amritpal Grewal Abbotsford Alecia Haynes ICBC Vancouver Claire I. Hildebrand Blake, Cassels & Graydon LLP Vancouver Elizabeth R. Holden Miller Thomson LLP Vancouver Joyce Ling Henderson & Lee Law Corporation Burnaby Kelsey E. Mohr MacLean Law Vancouver Nia Petrovic Prkacin Gammon & Sim New Westminster Taymaz Rastin Jenkins Marzban Logan LLP Vancouver Adam Soliman Lonsdale Law North Vancouver Ken Vimalesan Legacy Tax + Trust Lawyers Vancouver Brett Weninger Harper Grey LLP Vancouver

Articling Students Johanna Berry Ramsay Lampman Rhodes Nanaimo Laura Cochrane Squamish

Kaleigh Henry Richards Buell Sutton LLP Vancouver Catherine McCallum Ramsay Lampman Rhodes Nanaimo Keisha O’Hagan Dentons Canada LLP Vancouver Jack Yang Dentons Canada LLP Vancouver

Law Students Alexia Cadoret Vancouver Natali D. Chizik Vancouver Stephanie Dickson Vancouver Jason Fitzpatrick Montague David Giroday North Vancouver Mason Heller Langley Keith Hogg Stratford Alyshia Jiwan London Ramanpreet Kandola Richmond Chelsea Kidd Brighton Jesse Kitteridge Kelowna Tiffany Lee Victoria Kal Leung Vancouver Masha Lokshin Vancouver James Rhodes Nanaimo Prabhpreet Sangha Surrey Chelsea Szafranski Vancouver Connor Watt Vancouver

OCTOBER 2017 / BARTALK

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RETURN REQUESTED TO: The Canadian Bar Association, BC Branch, 10th Floor, 845 Cambie Street, Vancouver, BC V6B 5T3