|Dr. Rachel Birnbaum hopes the results of her study will help lawyers and judges in particular who are making court orders in family law situations.|
“I think [the information] will help lawyers and judges in particular who are making court orders. The more information we have, people can look at it and see whether it has been helpful or not,” says Birnbaum.
She says that the full extent of the benefits and challenges when using online technology for parents and their children to communicate post-separation are unknown because empirical data has never been collected before. The goal of the study is to find out what those pros and cons are and to add to the knowledge base that legal and mental health professionals can reference when needed.
Birnbaum predicts that some benefits might include that communicating through technology is helpful when keeping in touch with a child or parent who lives elsewhere. But she also predicts that, for some, this could mean financial barriers in terms of accessing the devices to communicate, challenges arising if the situation is high-conflict (concerns for miscommunication or abuse including domestic violence) or the unhealthy feeling of inviting one parent into the home of the other when they are trying to move on because technology, such as video chatting, allows them to directly see into the household.
“I don’t know if it will impact custody because this is more about parent-child contact and where the child lives,” says Birnbaum. “I don’t think that this would have an impact other than the implications of a child living with one parent and the other parent lives a great distance away but wants some extra time. Technology might be helpful to keep in touch with your child. But then the impact is what does this mean to the custodial parent and their time and relationship with the child?”
Birnbaum is hoping to conclude the study by the end of summer.
Click here to read more on technology and family law.
Updated: April 28, 2017, Rachel Birnbaum is a professor at King’s University College, London, Ontario – not at Western University.
|Justice Annemarie Bonkalo has recommended broadening the scope of family law to let paralegals provide legal services in the area.|
“I recognize that the issue of paralegals representing clients in court is one of considerable controversy,” Justice Annemarie Bonkalo said in the report.
Bonkalo is a part-time judge and former chief justice of the Ontario Court of Justice, who was tasked with conducting a review of family law services to assess what can be done to boost access to justice. Among what are expected to be some of the more controversial recommendations is a call for the law society to create a specialized licence for paralegals to provide certain services in family law.
In 2014-15, more than 57 per cent of Ontarians who went through family court, did not have legal representation.
“When I began this review, my own feeling, based on the written submissions I received, was that in-court assistance would not be appropriate and that a line could be reasonably drawn at the courtroom door,” she added.
“As I continued to explore the issues and hear from different communities, it became clear to me that precluding paralegals from appearing in court would be a disservice to clients.”
The report contends that paralegals should also be allowed to represent clients in matters concerning restraining orders, enforcement and simple and joint divorces without property, but draws the line at more complex proceedings.
The report recommends that paralegals should not be allowed to provide services that involve child protection, property, spousal support or relocation. They also would not be able to do anything that involves the Convention on the Civil Aspects of International Child Abduction or complex child support in which discretionary determinations are needed to arrive at an income amount.
Paralegals can currently appear in the Small Claims Court, and the Ontario Court of Justice for Provincial Offences Act infractions.
Bonkalo has also recommended paralegals should not have to seek a judge’s permission before entering court, as it would create uncertainty and would be a disincentive to hiring a paralegal.
“From a practical stand, it may discourage individuals from pursuing the specialized paralegal licence in family law, as it would be frustrating to not be able to provide continuous service to one’s client,” Bonkalo said.
“It would be difficult to explain to a client that one could assist the client with filling out forms and preparing for court but that, where the client perhaps most needed assistance, the paralegal could not enter the courtroom. Such a limitation could very well play into a person’s decision on whether to hire a paralegal.”
Family lawyers have voiced concerns that they could be pushed out of the market if paralegals are given the right to provide legal services in any part of family law. Opponents have also said that family law is a very complex area, in which even tasks that seem simple can have serious consequences and can lead to more complicated matters. Family lawyers have also said paralegals simply do not have the same training and called for the government to let other reforms play out before considering widening the scope of the area.
The report, which was commissioned by the provincial government and the law society, also recommends that the regulator take steps to facilitate collaboration between lawyers and paralegals to create referral networks and interdisciplinary teams.
“After reading all the written submissions and hearing the diverse views expressed, it is clear to me that unrepresented litigants in family law need more options in obtaining legal assistance to resolve their family disputes,” she said in the report.
Bonkalo has submitted the report to MAG and the law society, who will now determine the next steps needed to implement its recommendations.
In statement responding to the report, Attorney General Yasir Naqvi said the provincial government will be working over the coming months with the law society and the federal government to create an action plan for the recommendations.
"Over half of Ontarians who use the family law system do not have legal representation, and the problem is growing,” he said in the statement.
"It is more important than ever that we work to improve access to justice for families. Our government is ready to act. We are committed to working with our partners and the federal government to consider changes that will have a real, positive impact of people’s lives, like allowing paralegals to be trained to provide family law services."
Ontario Attorney General Yasir Naqvi hasn’t been shy about expressing the need to embrace technological advancement when it comes to the province’s justice system.
On Jan. 18, at an event at the Law Society of Upper Canada, Naqvi said the province is looking at e-filing of divorces.
“We’re looking at all different ways to make services available online. E-filing is, in my view, the very first important step we have to do . . .,” he said.
“I wanted to see on the family law side what could be done, so we’ve asked to see if divorce applications could be filed online.”
The move comes after the province introduced more digitization at Small Claims Court.
Jonathan Richardson, an Ottawa-based lawyer with Augustine Bater Binks LLP, says he is “pleased” by the news about possible digitization.
Richardson says the proposed change is “good for lawyers.”
“Any step which both reduces the amount of paper required while making a process more efficient is a step in the right direction,” he says.
He says there could be two significant potential ramifications.
“Firstly, pursuant to the Family Law Act, a person has until the earlier of six years from the date of separation or two years from the date of a divorce to seek an equalization of net family property.
“A party may not realize when e-filing for a divorce or receiving an e-filed divorce that he [or] she is starting the limitation period to seek an equalization payment,” he says.
He also says that most — if not all — insurance companies “will no longer provide extended health-care benefits to a partner when he [or] she is no longer a spouse.”
“E-filing for a divorce could result in that party being denied extended health-care benefits on a spouse’s plan,” he says.
“That works both ways.”
Brian Galbraith of Galbraith Family Law PC also says the move to digitize the divorce process will be welcomed.
“It will make divorce work more efficient so [it] should result in a cost savings to the consumer,” he says.
Steven Benmor, a Toronto-based lawyer with Benmor Family Law Group, agrees.
“Ontario should join the rest of the world and adopt IT, which is the fastest, cheapest and most modern way of communicating,” he says. “All legal cases are all about communication between [the litigant or litigants], lawyers and judges.”
Families in Ontario are getting a more inclusive legal definition.
|Nicholas Bala, a law professor at Queen’s University, says the act recognizes ‘a more complex social reality than generations ago.’|
The provincial government introduced the All Parents Are Equal Act on Sept. 29, a bill aimed at updating parentage law so all parents’ legal status is more clearly recognized. The proposed act would amend the Children’s Law Reform Act and the Vital Statistics Act, in the hopes the updates will address current legal uncertainty for parents and children.
Currently, if LGBTQ couples have a child using a surrogate or a sperm donor, whichever parent is not biologically related to the baby has to go through the court process of adopting the child.
“We have a more complex social reality than generations ago and it’s a good thing we’re getting into the 21st century on this,” says Nicholas Bala, a professor at Queen’s University Faculty of Law and an expert on issues in the justice system when it comes to families.
Bala says the act reflects a commitment by the Ontario government to have a “more progressive, more realistic vision of what constitutes parentage,” particularly when it comes to the use of increasingly sophisticated reproductive technology. The various ways people can bring a child into their lives necessitated a change to legislation, which was seen as outdated and discriminatory to LGBTQ families.
The existing laws will be updated to use gender-neutral terminology where possible, says a news release by the Ministry of the Attorney General.
The act was created in part with the influence of a private member’s bill tabled by NDP MPP Cheri DiNovo last year, and it comes after nine families launched a constitutional challenge to the existing legislation — some of which hasn’t been updated since 1978 — that was settled in June following the government’s commitment to provide all families with equal rights.
Ontario joins other provinces, such as British Columbia and Quebec, that have made updates to their parentage laws in recent years.
“All parents and their kids need to be treated equally under the law,” Attorney General Yasir Naqvi said in a statement. “The best thing for a child is to have parents who can make important decisions about their care from the minute they are born, without any legal uncertainty. There is no one way to have a family. The changes we are proposing reflect this reality.”
Bala notes this legislation recognizes the “range of possibilities” for becoming a parent, but he notes it also highlights that there’s still a lot to be done — specifically by the federal government — on regulations surrounding surrogacy.
“This is progress, but there’s a lot more to be done,” he says.
Proposed amendments to the Vital Statistics Act include rules for determining a child’s surname if there is a conflict between parents. The Children’s Law Reform Act would be updated in areas dealing with surrogacy, posthumous conception, rules of legal parentage and outline a simplified process for up to four people to be recognized as parents of a child.
The bill is currently in its second reading debate.
The new dean of the McGill University Faculty of Law says the school will be introducing a new property course as part of the school’s effort for program renewal.
|Robert Leckey takes over the post of McGill University’s law school dean in July.|
Leckey has been part of McGill’s faculty of law in Montreal since 2006, and is known for his research and teaching in family and constitutional law. He’s also the director of the Paul-André Crépeau Centre for Private and Comparative Law, and chaired the McGill equity subcommittee on queer people.
“The transsystemic teaching where multiple legal traditions are taught together, we’re actually pushing it further still,” says Leckey.
Take a new property course Leckey says will be “totally unique in the country.” Until now, he says there’s been “a common law property course and a civil law property course for Quebec, and that’s going to be integrated in a new property course that will have common law, civil law, but also make Indigenous legal traditions more prominent, as well.”
“It’s an important moment as we and other law faculties respond to the recommendations of the Truth and Reconciliation Commission, I think it’s really exciting we have this property course in development,” he says.
Leckey says he plans to meet with as many stakeholders as possible this summer to chart the way forward for the law school.
“The listening is a really crucial part of the start of the mandate for me,” says Leckey.
As of October 2015, the school had more than 680 students in its undergraduate program, more than 90 in the masters program, and more than 60 in the doctorate program. There are 44 full-time faculty, who are tenured or streamed for tenure.
Leckey says competition for research dollars and graduate students is fierce, and the school will be making effort to communicate its strengths.
“I think the scholars here do amazing research, we have internationally recognized scholars, and I think we can clarify and communicate better what the research strengths of the faculty are,” says the incoming dean.
Leckey says the school is known for areas including international and domestic human rights, private law and comparative private law, dispute resolution, civil procedure arbitration, and trade and international governance.
“It’s a very competitive environment, where we’re competing with other people with clear brands, and I think we can clarify ours further,” he says.
Schools, especially in Quebec, face challenges regarding funding, he says.
“The pressure is increasing because the university’s own resources are less and less, particularly in Quebec these days, we need to be bringing in outside research money,” he says.
“And so, there’s a provincial research funding council, there’s a national one in Ottawa, there are opportunities to partner at times with other kinds of organizations, but, in order for us to have the money to hire students, to travel to do our work, people need to be bringing in grants, and so, it is increasingly competitive because typically those governmental envelopes have not been growing over the past years, so part of the task is to be bringing in resources.”
Tuition is frozen and is “very low,” he notes.
“McGill is subject to the Quebec government’s funding formula, and yet, we’re trying to compete on the international stage,” he says.
Leckey says he plans to continue his research, and will look how law reform has affected unmarried couples.
“People tell me the deanship will reduce my research time, but I’m certainly going to continue active as a researcher and do as much as I can,” he says.
Lawyers who deal with emotionally charged mediation and arbitration may often feel ill equipped to deal with the personality conflicts they face, but a panel discussion Monday examined tools to manage them better.
|In mediation lawyers may be dealing with individuals who may not know they are suffering from a personality disorder. (Photo: Shutterstock)|
Speakers included Howard Hurwitz, a social worker who handles mediation in dealing with “high conflict” families, Mary Truemner, vice-chairwoman of the Human Rights Tribunal of Ontario, and Nathalie Boutet, of Boutet Family Law, and Michael Cochrane, a family lawyer with Brauti Thorning Zibbaras LLP.
The goal of the panel was to help those involved recognize common personality disorders and provide some practical strategies for improving mediation when personality disorders are present.
“We run into very difficult people facing difficult, emotional problems. We are hoping with the panel to get a handle on how can we diagnose these people, figure out what they’re all about and then have a strategy for dealing with them, whether as a mediator or as a lawyer, and also to make sure we’re looking after ourselves in the process if acting as a mediator,” said Cochrane.
Often, though, in mediation lawyers may be dealing with individuals who may not know they are suffering from a personality disorder or may be diagnosed and are in denial.
Hurwitz outlined four personality disorders including:
• Borderline: people who have erratic and unpredictable behaviour.
• Narcissistic: focused on themselves; it’s all about them and no awareness of anyone else in a process. In family mediation this may occur with people who speak to what is in the best interest of the child but really are focused on their own best interest.
• Antisocial: no regard for rules. They have their own set of rules and trying to talk about a regulatory framework is something very difficult and challenging.
• Histrionic: a need to be the centre of attention and often call with hysterical reaction to latest crisis.
Hurwitz said there are four helpful steps in trying to reduce hostility or problematic behaviour.
• Build trust and rapport.
• Be strategic and objective and provide structure; provide an agenda for the mediation session and make sure the parties have input on the session.
• Stay grounded in the here and now; ensure there is some reality perspective to what is trying to be done.
• Be clear about consequences.
When dealing with personality disorders Hurwitz said it is important to provide structure and limits to your relationship; maintain professional boundaries; allow some brief venting; empathize but don’t condone behavior and avoid criticism and anger.
“Many of these people have a need to talk about how they have been wronged prior to getting to you. I find it helpful to allow some brief venting and then redirect and reframe,” he said.
However, Truemner who does mediations and is also an adjudicator, noted it is difficult to “diagnose” people, even with access to medical files, and that it can be often impossible to have a full picture of someone’s mental health. She also cautioned it can be problematic relying on various strategies.
“I’m a little bit wary of pigeon-holing people,” she said. “I treat each party as unique, bearing in mind that I have a duty to accommodate disability myself because I’m providing a service.”
Often during a mediation/adjudication Truemner said she will use medical records to acknowledge briefly to the person that she understands their situation.
“Just to let them know that I get it and that I understand how hard it is,” she said. “It shows that I’m open to talking about disability and open to understanding how it requires accommodation.”
She noted that the definition of disability does include a mental disorder. For example in the recent Graff v. Jones Le Salle Real Estate Services Inc. case, personality disorder was mentioned where it was recognized as a disability and discrimination was found for failure to accommodate.
“One of the ways we at the tribunal accommodate — perhaps with obsessive compulsive disorder who gives us a heads up — I take a long time to make decisions about things and not the half day normally scheduled. We may even ask for medical documents to support the request for accommodation,” she said.
“Dealing with people different disabilities does require more time.”
Truemner agreed that people won’t always be self-aware and know they have a personality disorder and you need to be careful with making assessments.
“There’s a danger in assuming someone has a personality disorder based on your own observation. They may think you are going to prejudice the process because of that perception. You might jump on a bandwagon and go down the wrong road,” she said.
She also noted the importance of “active listening” and demonstrates that you have read the file, and be slow and focus.
“Just say ‘How are you, how are you doing?’ and get ready to listen, because it’s going to take a long time for them to describe how they’re doing but you’ll be able to open that door to talk about disability,” she said.
Build extra breaks into the schedule and take your time, Truemner suggested.
“Repeat legal principles and their application; I’m very honest about what I think is going on in a file. It builds trust and gets to a point where I can ask them, ‘Do you really think your prediction is going to pan out?’ I get to open those doors more easily once I’ve gained that trust,” she said.
Boutet spoke to “triggers” that mediators should watch for in themselves and clients to avoid emotionally veering off course.
“Our ability to think and reason diminishes when we are triggered,” she said. “As a practitioner, lawyer, mediator if you get triggered by difficult personalities you will not necessarily be attentive to all of these things we are supposed to be attentive to.”
“Often we are placing them in front of really horrific choices where they get triggered, get emotional and we ask them to evaluate the good and the bad of the choices.”
Boutet offered two tips to avoid triggers going into mediation.
• Set an intention: a determination to act in a certain way and a way to bring about, forcing you to clarify what you want. Commit your intention to writing. Define who you will be and what your intention will be.
• Self-care: i f you don’t get proper sleep or eat right you will be more susceptible to being triggered.
Can family lawyers include a provision in their retainer agreements giving themselves discretion to withdraw from the case for non-payment of legal fees?
That was one of the issues in a Law Society Tribunal case in which the panel made findings of professional misconduct against a Whitby, Ont., lawyer who acted for a client in her matrimonial dispute. At the very least, a lawyer must advise the client about obtaining independent legal advice, the tribunal found.
In this case, the retainer included a provision noting that the lawyer, Matys Rapoport, “in his discretion may withdraw from acting on my behalf” for reasons including non-payment of an account. “
“I expressly give Max Rapoport permission to sign a notice of change in representation on my behalf should he deem same necessary,” stated the retainer agreement signed by the client in 2010.
With the client not having paid accounts totalling $23,027.52 by September 2011, Rapoport began expressing concern about the outstanding amounts and told her that fall that he’d no longer act for her unless she began making payments, according to the tribunal’s July 7 decision.
In November 2011, the lawyer sent a letter saying he’d continue to act if she signed two consents to judgment. She signed them but with the issues over payment continuing, he sent another letter in March 2012 saying he’d remove himself as solicitor of record unless he received $34,000 towards the outstanding account within 10 days, according decision written by panel chairwoman Susan Opler.
Rapoport ended up filing a notice of a change in representation on the client’s behalf, Opler noted. The client responded with an e-mail calling the lawyer’s withdrawal as “unfair” and “unfortunate.”
For his part, Rapoport noted his reliance on the retainer agreement as a “precedent form retainer agreement that several counsel (unidentified) rely upon in his jurisdiction,” wrote Opler.
But in considering whether his actions were acceptable, Opler compared them to another case in which a family lawyer’s retainer agreement contemplated a client giving up his right to an assessment under the Solicitors Act.
The client in that case had essentially contracted out of the Solicitors Act, she found, noting Rapoport had achieved a similar result by obtaining the consents to judgment and serving a notice of a change in representation.
“This latter appropriation of the client’s right to terminate the relationship ‘at will’ meant the Lawyer effectively bypassed the procedural safeguards that apply to counsel of record established in the Family Law Court Rules, which protect the client and safeguard the process. In our view, both the assessment process and the right to end the solicitor client relationship ‘at will’ . . . are consumer protection provisions designed for the protection of the public which should not be appropriated by the Lawyer,” she wrote.
Opler highligted the power imbalance at issue and the importance of advising on the need for independent legal advice “as a lawyer treads closer and closer to the line of encroaching on existing client rights in favour of strengthening his own economic position.”
The decision continues: “Suffice to say that in this case, where no acknowledgment of the inherent conflict is included in the agreement nor is there guidance given to the client to seek independent legal advice, we find that the Lawyer was in an impermissible conflict of interest when he advised the client to hand over to him all control over service of a Notice of Change in Representation — a right that properly belonged to her pursuant to Rule 4(10).”
While the panel made the misconduct findings, it must still reconvene to consider the penalty.
Rapoport’s counsel Ted Spong declined to comment as the case is still before the tribunal.
While provincial superior courts can decide that federal regulations are invalid, only the Federal Court of Canada can declare them invalid via judicial review — although they have broad discretion to deny such review.
|Mary-Jo Maur believes there’s little chance a challenge to wipe out the Child Support Guidelines would succeed.|
The ruling in Strickland v. Canada involves a divorce case from Alberta in which the appellant, Robert Strickland, challenged the validity of federal Child Support Guidelines under the Divorce Act.
Strickland argued that the regulations, implemented by former justice minister Allan Rock in 1997, are inconsistent with the legislation. Rock’s attempt to amend the Divorce Act (which considers the means of both parents) to correspond with the guidelines (which only considers the means of non-custodial parents) was defeated by the Senate.
It’s this inconsistency that led Strickland and two co-appellants to seek a judicial review at the Federal Court of Canada.
When the court denied application for review — arguing it had little experience in family law matters and was an inappropriate forum — the applicants turned to the Federal Court of Appeal, arguing that the lower court’s reasoning was insufficient to deny the review.
Today’s decision, written on behalf of a unanimous court by Justice Thomas Cromwell, makes clear that superior courts have overriding discretion to deny judicial review, particularly when the court deems itself to be an inappropriate or inadequate forum.
“In this case,” the decision states, “the appellants’ position that they are entitled to a ruling on the legality of the Guidelines through a judicial review is fundamentally at odds with the discretionary nature of judicial review and with the broad grounds on which that discretion may be exercised. The appellants do not have a right to have the Federal Court rule on the legality of the Guidelines; the Federal Court has discretion to do so, which it has decided not to exercise. . . .”
“The provincial superior courts deal day in and day out with disputes in the context of marital breakdown concerning the needs of children. . . . Parliament has entrusted, for practical purposes, this entire area of law to the provincial superior courts. Having done so, it would be curious, to say the least, if the legality of a central aspect of that regime were to be finally decided by the federal courts, which as a result of federal legislation have virtually no jurisdiction with respect to family law matters.”
Glenn Solomon, the litigator at Jensen Shawa Solomon Duguid Hawkes LLP who represented the appellants, says the ruling is by no means a decisive loss for his clients.
While the SCC decision shuts the door on a Federal Court review, it leaves open the possibility that the Child Support Guidelines will be rendered inconsistent with the Divorce Act through a traditional proceeding. Indeed, Solomon says an action at the Alberta Court of Queen’s Bench, which has been pending the SCC decision, will now proceed.
“It seems to me that what the Supreme Court has said is that only the Federal Court can declare the guidelines ultra vires the Divorce Act, but the superior courts can, in a case where there are other issues, decide that the guidelines are ultra vires the act,” says Solomon.
“And so we have the distinction between what the superior courts can decide, and what only the federal courts can declare.”
If Strickland’s challenge at the Court of Queen’s Bench succeeds, an appeal on the regulation itself — versus the discretion of the courts — could still make its way back up to the Supreme Court of Canada.
“A decision at the Federal Court doesn’t bind a provincial superior court,” says Solomon. “If anybody wants a ruling once and for all on the validity of the guidelines, it’s going to have to go up through the court system to the apex of the system, to the Supreme Court, to get a decision that binds everyone.”
Mary-Jo Maur, an assistant professor and family law expert at Queen’s University, says she “admires the boldness” of the attempt to wipe out the Child Support Guidelines, but she believes there’s little chance that such a challenge could succeed given the number of divorce cases that would be caught up in the maelstrom.
“Does this mean that people can go to the provincial superior court and ask to have the Child Support Guidelines declared invalid? Theoretically, somebody could do that, in the context of their own divorce application . . . but do they have a chance of winning it?!” she laughs.
“Ask me what the odds are — they have to be into the negative numbers. I mean, think about all the cases going back to May 1, 1997. What happens to them?”
|Virtually all the changes come into effect today and those that don't will be retroactive, says LAO's Thomas Nye.|
“Virtually all of them come into effect immediately,” he says of the changes, noting the only exception involves the changes with respect to bail matters.
“However, they will be retroactive to June 8,” he adds.
With the Ontario government pumping more than $96 million into LAO over three years, the agency is moving ahead with an expansion of certificate coverage to provide assistance in a greater range of areas. This is in addition to the series of increases to the income eligibility threshold that started taking effect last year.
In criminal law, for example, LAO will now issue certificates based on criteria besides the loss-of-liberty test that considers an applicant’s likelihood of going to jail. Under the changes, certificates will be available to those meeting the income eligibility criteria who are facing secondary consequences of a criminal conviction such as a risk of deportation; immediate loss of public housing; or a significant impact on access to family and child custody.
In addition, LAO will expand coverage for those meeting the income criteria with no prior criminal record in situations where the Crown is seeking a conviction or discharge and the defendant is First Nation, Métis, or Inuit; has a mental illness; or is a victim of domestic violence charged with an offence related to a partner.
When it comes to bail, the changes include providing for enhanced certificates for reviews that will expand the number of hours lawyers have to challenge bail orders and improper conditions imposed on those released.
In the area of family law, the changes will expand coverage for complex cases. According to Thomas, they refine the definition of complexity to deem certain matters, such as those dealing with applications under the Hague Convention on the Civil Aspects of International Child Abduction, to be “presumptively complex.”
As well, they’ll include provisions for what Thomas calls “client complexity criteria” to define complexity on the basis of client characteristics such as literacy issues or language barriers.
Additional changes will provide for certificates in mental-health proceedings to assist those meeting the income eligibility criteria who wish to bring guardianship applications before the Consent and Capacity Board or the Superior Court.
In addition, the changes provide for expanded coverage in refugee matters and domestic violence cases. They’ll also provide for targeted services for aboriginal clients and expand LAO’s public-interest criteria for test cases that address systemic issues affecting the poor.
“The old test-case criteria were pretty narrow,” says Thomas, noting it will now be possible to provide a certificate in a test case with significant implications for the poor even if the representative client doesn’t meet the financial eligibility criteria.
“We are growing the program to match the funding,” says Thomas, adding there may be further changes as the funding continues to grow — including another $67 million announced by the province in its spring budget for 2017-18 — and LAO assesses the impact of the expanded services so far.
|Lawyers see updates to Manitoba’s family laws as very positive. (Photo: Shutterstock).|
“The best interests of a child must always be the most important and often the only consideration in the area of family law. This is clearly entrenched within the proposed legislation, which would also include strong, new tools to collect child support from parents following separation or divorce,” Justice Minister Gord Mackintosh said in a statement.
Among the proposed changes and additions to the law:
• Online posting of the names and photos of delinquent parents with outstanding arrest warrants to determine their whereabouts.
• Withholding of recreational hunting and fishing licences.
• Increasing the maximum compensatory amount for late or missed support payments to $5,000 from $500.
• Allowing a child to apply for child support.
• Withholding of the Manitoba enhanced identification card for entrance to the U.S.
“I think that most family lawyers in Manitoba see the legislation as very positive . . . it gives more clarity to certain areas, especially around relocation and mobility,” says Robynne Kazina, a family lawyer at Taylor McCaffrey LLP in Winnipeg. “Traditionally these are really difficult cases because there’s no middle ground — [one parent] is going to either be allowed to move or not.”
She it was difficult to advise clients because of lack of clarity in existing legislation but now it is better codified. For instance, one parent has to give notice within a certain time frame, there are rules if one parent wants to contest the move.
“When you look at the legislation, the biggest piece of the legislation that will have an impact on our work will be around mobility.”
For lawyers it’s not about toughening up on deadbeat parents. They way the government sells it in its news release doesn’t really “reflect how big of a change that is to our practice — it’s huge, says Kazina. “If you talk to any family lawyer this week, that’s all they’re talking about. It’s a big, big deal, this relocation and mobility stuff.
One very innovative part of the new law, sh says, deals with declaration of parentage and updating the law around assisted reproductive technology.
“The other stuff is great, it’s basically adding more tools to the toolkit.”
She notes the “shaming” aspect of the proposed law hasn’t been controversial because it’s really aimed at extreme cases.
“[E]specially with the posting online — that has to be for someone who has an outstanding arrest warrant. These measures are probably not going to be used every day, they’re for the exceptional circumstances. They’re still good to have in place.”
Mackintosh said there’s been a 205-per-cent improvement in child-support compliance since 2000, but that 40 per cent of parents still fail to meet their full obligations.
A 2014 CBC investigation found that Manitoba parents owe a collective $58 million in support arrears, while the nationwide total is a staggering $3.7 billion.
Manitoba’s online initiative matches an Ontario site called Good Parents Pay, which shows photos, last known location, and other information on a rogues’ gallery of deadbeat dads.
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