21 October 2015

BCAMI Family Law Arbitrator Training

The British Columbia Arbitration and Mediation Institute is offering training in the arbitration of family law disputes. This five-day, forty-hour course is being run by noted arbitrator Glen Bell, who has long provided the BCAMI's commercial arbitration training, and includes presentations from a number of prominent British Columbia family law lawyers including myself and:
This course will be useful for any lawyer wishing to practice as a family law arbitrator.

I have personally enjoyed arbitrating family law disputes. I appreciate the flexibility the process offers about the style and nature of hearing and the manner in which evidence and arguments are presented, not to mention the intrinsic privacy arbitration provides. Arbitration is a high value alternative to litigation when a family law dispute cannot be settled, and I recommend it to anyone who wishes to keep his or her dirty laundry out of the public spotlight and seeks a speedy resolution.
Dates: 30 November to 4 December 2015 
Place: People's Law School, 900 Howe Street in Vancouver 
Cost: $1,890.00
Note that there may be prerequisites which must be met by those wishing to take the course. This is mentioned on the registration form, but I've been unable to find any details on the BCAMI's website.

19 October 2015

A Different Approach to Parental Alienation Cases: It's Time to Try Something New

Family law cases involving sincere allegations of parental alienation are difficult, highly emotional and profoundly conflicted. Although a certain number of these cases were likely to be high-conflict anyway, adding allegations of alienation to the mix makes conflict a near certainty. I can, however, imagine an alternative, more child-centred approach to these cases that just might encourage negotiation and curb the usual headlong rush to trial.

Allegations of alienation are extraordinarily painful to all involved, and it seems to me that it is the intensity of our emotional response to such allegations which sparks the fight-or-flight response spurring conflict and inhibiting our capacity for rational judgment. Consider, for a moment, the context in which these allegations are raised for both parents.

Rejected parents are generally struggling with the achingly painful loss of a relationship with their children at the same time as they're dealing with the legal fallout from the end of their relationship with the other parent. The loss of a relationship with a child is not the loss of a relationship with a friend or adult family member, but the loss of an intimate nurturing relationship with thickly interwoven elements of caregiving, mentoring and vulnerability. It is also a relationship so heavily laden with social expectations, usually of the Norman Rockwell and Hallmark Cards varieties, that the personal loss is inevitably accompanied by significant narcissistic injury and feelings of failure, inadequacy and abandonment.

The sting of the loss is felt just as keenly whether the child’s rejection of a parent was a reasonable reaction to the personality and parenting traits of the rejected parent or arose from the malicious, willful efforts of the favoured parent. In my experience, parents whose behaviour had triggered the breakdown of their relationship with a child were generally oblivious of the fact. It is always easier, it seems to me, to blame someone else for one’s own failings, especially on matters so closely tied to ego and self-esteem.

Favoured parents, on the other hand, seem to react to allegations of alienation with the same degree of strident indignation whether they poisoned the child’s relationship with the rejected parent or not. They may characterize such allegations as spurious attacks on personality, desperate attempts to gain advantage, superficial pretexts for the pursuit of sole custody or nothing more than old school mud-slinging. Either way, it is rarely tactically possible for favoured parents to acknowledge the truth, or even partial truth, of allegations of alienation; such allegations must always be contested.

Of course, to round out this discussion of context, it must also be remembered that allegations of alienation do not occur in the same sort of dispassionate, arm’s-length relationship that exists between the parties to personal injury lawsuits or shareholders’ grievances. The parties involved in family law proceedings once (usually) trusted each other and loved each other deeply. They held hands together, broke bread together and, at least once, slept together. Now, however, they are adversaries opposed in interest, engaged in combative court proceedings, who nonetheless will maintain a lifelong relationship with one another.

As a result of this unpleasant emotional stew, unaffected allegations of alienations either trigger conflict, or take existing conflict to new heights, and raise the stakes such that the rejected parent cannot resile from his or her claims without a serious loss of face, or a potential admission of poor parenting skills, nor can the favoured parent concede even the partial accuracy of those claims.

In a previous post on Slaw, “Therapeutic Interventions and the Alienated Child: Whose Interests Are We Serving, and How Are We Serving Them?,” I suggested that the basic characteristic shared by all children who had become alienated from a parent is the child’s pathologically distorted views and feelings toward the rejected parent. I argued that if the best interests of the child is truly the primary consideration in all decisions affecting children, that the primary goal of all therapeutic interventions should be to transform the child’s distorted thinking into more realistic views and feelings that are based on the child’s actual experience of the rejected parent. I argued that that the restoration of the parent-child relationship should not be the primary goal of such interventions, although the repair of that relationship would obviously be a welcome incident of the repair of the child’s distorted views and feelings.

Of course, the even more fundamental characteristic shared by all children whose relationship with a parent has broken down, because of the actions of the favoured parent (alienation) or because of the parenting skills or past behaviour of the rejected parent (estrangement), is the loss of the parent-child relationship. Whether the cause of the breakdown can be agreed upon or not, the fact that the breakdown has happened is usually manifest and beyond dispute. This is what Alyson Jones, the noted Vancouver clinical counsellor, has described as “attachment disruption.”

What if, instead of responding to the breakdown in parent-child relationships as alienation, casting blame on the favoured parent, or estrangement, casting blame on the rejected parent, we instead focused on the fact of the child’s attachment disruption, its impact on the child’s wellbeing and the means by which the child’s wellbeing might be revitalized and enhanced? What if rejected parents could not allege alienation at the hands of the favoured parent but only the fact of the child's attachment disruption?

There are, I suggest, a number of benefits to be gained from such an approach.

Firstly and most importantly, the disruption of a child’s relationship with a parent is a tangible, measurable fact that has nothing to do with blame. The fact of the child’s attachment disruption can be established without the need to pursue its cause; it ether exists or it does not.

Secondly, placing the focus of enquiry on the child’s attachment disruption minimizes conflict by discouraging the need to lay blame, whether on the favoured parent or the rejected parent. It allows the favoured parent to consider the breakdown of the child’s relationship with the other parent as primarily an issue of the child’s health and welfare, and eliminates the need to respond to hurtful allegations of misconduct. It likewise allows the rejected parent to focus on the issue as the child’s problem rather than the parent’s personal problem, and, in lessening the pain of the loss of the relationship, the need to find fault with the favoured parent is also lessened.

Thirdly, placing the focus of enquiry on the child’s attachment disruption encourages favoured parents, as well as rejected parents, to raise the breakdown in the parent-child relationship as an issue that must be resolved to promote the child’s wellbeing in the legal proceedings.

Fourthly, in avoiding the need to lay blame we avoid the need to identify a cause of the child’s attachment disruption. What is important is the fact of the disruption, not an investigation into fault. (Besides, my impression of these cases is that there are very few situations that are purely alienation or estrangement; most of the time, the breakdown of the parent-child relationship results from elements of each.) If we can avoid the need to lay blame, we reduce the intensity of emotions and conflict, increase the likelihood of settlement, reduce the cost of experts’ reports and decrease the length of trial.

Finally, this approach is child-centred and emphasizes the therapeutic goal of addressing the child’s attachment disruption. It allows parents’ behaviour to be criticized without incrimination and thereby promotes the constructive engagement of both parents in the therapeutic process.

It is important to recognize that this approach does not prevent the court from addressing the negative behaviours typically raised in proceedings alleging alienation or estrangement. A parent prone to disparaging the other parent in the presence of the children can be required to attend therapy or be restrained from making negative remarks merely upon proof of the impugned behaviour, without the need to also allege alienation. Similarly, a parent prone to the sort of harsh discipline that can result in estrangement can be sent to anger management or be restrained from hitting the children, without the need to allege alienation or counter with allegations of estrangement.

It is also possible to pursue the other remedies typically associated with parental alienation without making such allegations. It is not necessary to allege alienation to pursue contempt proceedings for failure to adhere to a parenting schedule, seek costs for a parent’s misbehaviour, or apply for case management or the appointment of a parenting coordinator. It is not necessary to allege alienation to pursue a switch in primary residence or severely truncate the favoured parent’s contact with the child, if that is what is needed to address the child’s attachment disruption.

Allegations of alienation are toxic and invariably exacerbate conflict between parents, whether the allegations are well-founded or not. The frequency of these allegations, albeit not their substantiation, is continuing to increase, as shown in recent work of the Canadian Research Institute for Law and the Family (PDF), and these cases are sucking up increasing amounts of judicial resources, not to mention litigating parents’ financial resources. They diminish or delay parents’ capacity to successfully cooperate in the raising of their children after trial and increase the likelihood that the parents’ legal dispute will have a lasting negative impact on their children, potentially impeding children’s relationship formation and social functioning as adults.

Approaching the breakdown of parent-child relationships from the lens of attachment disruption strikes me as likely to minimize parental conflict, increase the likelihood of settlement and successful co-parenting, and emphasize the overarching importance of supporting children’s wellbeing after separation. Without a doubt, research and much more thinking is necessary to support and more fully develop this concept, but in the meantime I encourage parents and counsel to refrain from the slings and arrows of alienation allegations and consider a more neutral approach focusing on the fact of the damaged parent-child relationship rather than the cause of the damage.

A version of this post was originally published in the online legal news magazine Slaw on 16 October 2015.

07 October 2015

Fantastic Elder Law Conference Coming to Vancouver in November: Save the Date!

The Continuing Legal Education Society of British Columbia, Canada's leading providing of continuing professional training for lawyers, and the Canadian Centre for Elder Law are hosting the Canadian Elder Law Conference on 12 and 13 November in 2015. The conference is open to anyone with an interest in the legal and other issues affecting Canada's elders, but will be of most interest to lawyers, financial planners and mental health professionals.

The conference is extremely timely, given Statistics Canada's recent report showing that there are now more Canadians who are older than 65 than those who are under 15. In fact, the baby boomers, the oldest of whom turned 65 in 2011, make up a greater share of the population than any other age group.

The boomers are also the first generation for whom divorce carried only a marginal stigma, as a result of the introduction of the original Divorce Act in 1968. But not only are more older persons divorced or separated than ever before, more are forming new married or unmarried spousal relationships. This poses special challenges for the legal and mental health professionals involved in family breakdown, as we can expect, in the very near future, to be helping more clients with significant physical and mental illnesses, more living on fixed incomes and in poverty, and more requiring institutional or assisted home care. Cases involving persons of retirement age often raise special concerns and competing generational interests about the distribution of income and assets following separation; concerns can also arise about the tension between the interests of employed persons wishing to retire and dependent persons unable to survive without spousal support. Dealing with later-in-life separation also demands a special sensitivity to the needs of women, who have lower incomes than men in general, and are disproportionately affected by separation and divorce.

I've written about the economic consequences of separation and divorce later in life, the federal benefits available to older Canadians and the interplay of spousal support and retirement in a paper for the National Judicial Institute, which you can download (PDF) from the website of the Canadian Research Institute for Law and the Family.

This conference is a must for anyone practicing family law or involved in family breakdown from a financial or therapeutic perspective. The full details, including the agenda, are available on CLEBC's website and CCEL's website, but here's the stuff you need to know.
Place: Pan Pacific Hotel, Vancouver BC 
Date: 12 and 13 November 2015, 9:00 am to 4:30pm both days 
CPD Credits: 12.5 hours, including 2 hours on ethics 
Pricing: Early bird registration of $1,005 ($585 for students) ends 15 October 2015. The registration fee thereafter is $1,110 ($585 students), or $990 if you want to attend by webinar.
Keynote speakers include:
  • Barb MacLean, Chair of the British Columbia Council to Reduce Elder Abuse
  • Isobel Mackenzie, British Columbia's Seniors Advocate
  • Dr. Andrew Wister, Chair of the National Seniors Council
Panelists presenting at the conference include myself and: 
  • Hon. Marion Allan, Clark Wilson
  • Barbara Buchanan, Law Society of British Columbia
  • Deidre Herbert, McLellan Herbert
  • Anna Laing, Fasken Martineau
  • Andrew MacKay, Alexander, Holburn, Beaudin and Lang
  • Catherine Romanko, British Columbia Public Guardian and Trustee
  • Kimberly Whaley, Whaley Estate Litigation
  • Geoffrey White, Geoffrey W. White Law Corporation
The topics to be addressed include:
  • Advance health care planning
  • Whether a national power of attorney registry would help reduce elder financial abuse
  • Update on guardianship law in British Columbia
  • Reporting and responding to suspected elder abuse
  • Physician assisted suicide and health care decision-making
  • Later-in-life separation and divorce
  • Dementia and client competency
  • Class action litigation in elder and estate law
Save these dates and head on over to CLEBC's website to register now. Space is limited.