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FDR Updates, News & Updates

Med/Arb Agreement Enforceable Despite No DV Screening

Lorne H. Wolfson
Posted on March 13, 2020 at 12:34 pm / 0

Z.S. v. B.P., 2020 ONSC 885 is the latest in a series of cases in which Ontario courts have had to determine if an arbitration agreement is enforceable notwithstanding its failure to comply with the procedural requirements of the Regulation to the Arbitration Act. The parties had signed Minutes of Settlement in which they agreed to proceed with mediation/arbitration. The parties and the arbitrator executed a mediation/arbitration agreement which provided that it would become effective once the domestic violence screening required by the Regulation had been completed. The husband refused to attend for screening and argued that the med/arb agreement…

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FDR Updates, News & Updates

Marketing and Profitability in A Boutique Practice – Build Your Niche

Ian Hull and Nick Esterbauer
Posted on March 13, 2020 at 12:05 pm / 0

At some point or another, many lawyers, mediators, or other professionals assisting families will consider focusing their practices into areas of specialization.  While the focus of this paper is marketing from the perspective of a specialized estates practice, many of the same principles and tools may apply to other specializations in law and related fields.  This paper will attempt to address some of the niche marketing tools that have been effective in our practice. Specific Marketing Techniques The following is a summary of ten tangible steps that were taken by Hull & Hull LLP over the years to establish itself…

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Event, FDR Updates, News & Updates

CBV/FDRIO Conference February 13, 2020

Posted on March 13, 2020 at 11:54 am / 0

On February 13th, 2020, FDRIO and the CBV Institute (the professional organization of Chartered Business Valuators in Canada) held a joint conference on “Current Issues in Family Law”. This event – attended by over 100 professionals – focused on three main areas: facts vs appearance, practice issues, and joint retainers. Nine professionals, including six business valuators, two family law lawyers, and a retired judge addressed these issues. 1)  Independence of experts: Fact vs Appearance  Neil Maisel moderated a panel with Brahm Siegel and the Honourable Cliff Nelson who provided their thoughts on the recent changes to joint litigation experts and…

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Family Dispute Resolution, FDR Updates, Mediation

The Present Parent

Anne Marie Predko
Posted on February 13, 2020 at 3:21 pm / 0

A few years ago, I read “Far from the Tree: Children and the Search for Identity”, a book about exceptional children and how parenting them changed their parents’ lives and identities. The children in Andrew Solomon’s book are profoundly different from their parents, and from many in society, but the experience of parenting them reframes the world, and bring their parents’ humanity to the surface.  Many people struggle to focus on parenting.  Canadians, and most people in developed countries, have a great deal of pressure during their child-raising years, with jobs, aging parents and social expectations.  For separating couples, the…

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Family Dispute Resolution, FDR Updates

Parenting Law Gems

Hilary Linton
Posted on February 13, 2020 at 3:15 pm / 0

The program and materials at this year’s OBA Institute on February 7 were outstanding, particularly in the area of parenting law. Key take-aways for family mediators, arbitrators and parenting coordinators included:  Justice Nicole Tellier presented an excellent paper on “The Mental Health Professional as Expert: Options and Ideas for Your Tougher Parenting Cases”. She spoke about section CLRA 30 assessments, noting: It is no longer necessary to establish a clinical issue (Glick v Cale, 2013 ONSC 893 (CANLII) The use of clinical records and reports from ‘participant experts’ and the scope of their evidence has been clarified by Westerhof v…

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Family Dispute Resolution, FDR Updates

North York Women’s Shelter – Reaching Out to Experienced Lawyers

Miriam Roger
Posted on February 13, 2020 at 2:57 pm / 0

FDRIO had the opportunity to interview Mohini Datta-Ray, the Executive Director of the North York Women’s Shelter, and Miriam Roger, who is creating a roster of lawyers who are skilled and experienced to assist in referrals of shelter clients. FDRIO : We hear that North York Women’s Shelter (NYWS) is putting together a list of lawyers who have experience with intimate partner violence (IPV) and gender-based violence (GBV) cases – why did you decide this was a good approach?  MD-R: Our recently reopened shelter was designed in response to some of the biggest systemic issues facing survivors of intimate partner…

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Family Dispute Resolution, FDR Updates, Mediation

Court Decision Highlights Importance of Screening for Suitability for Med-Arb

Hilary Linton
Posted on February 13, 2020 at 2:41 pm / 0

Current best practice in the negotiation of separation agreements is to not mandate future mediation-arbitration of any disputes.  The recent trial decision of Justice Finlayson in C.S. v. D.A.S. 2020 ONCJ 16 (CanLII) illustrates the perils of boilerplate mediation-arbitration language in separation agreements.  The parties’ separation agreement required them to go straight to private arbitration in the event of a future dispute. Such a clause is not as common; usually the parties are mandated to first try mediation.  When the parties were unable to agree on a proposed change to their Separation Agreement, the mother attempted to initiate the arbitration…

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Family Dispute Resolution, FDR Updates

Cliff’s Notes – Disciplining a Social Worker

Cliff Nelson
Posted on February 13, 2020 at 2:34 pm / 0

Social workers who are involved in mediation, mediation/arbitration, custody arrangements and parenting coordination will be interested in a recent decision of the Discipline Committee of the Ontario College of Social Workers and Social Service Workers v. D 2019 ONCSWSS8. The four discipline cases, (heard as one), raised allegations against a senior social worker in his role as an assessor, mediator and parenting coordinator. The very detailed decision resulted in a penalty which included suspension and remediation through both education and mentoring. What is interesting and instructive is the type of conduct that the panel found inappropriate. I have set out…

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FDR Updates, Mediation, Parenting Cordination

Children Resisting Contact – Challenges, Controversies & Conundrums

Nick Bala and Barbara Jo Fidler
Posted on February 13, 2020 at 2:05 pm / 0

Cases of children resisting contact with a parent post-separation are often complex and dynamic, with multiple interacting factors that are likely to be changing over time. Almost all of these cases involve children who are experiencing a parental separation characterized by significant conflict. While many of these cases need court involvement, for some, with the help of skilled professionals, mediation may be the most appropriate response.  Some of these children are “alienated,” as they are resisting contact or rejecting a parent in a way that is disproportionate to the child’s experience with that parent and inconsistent with the previous relationship…

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Family Dispute Resolution, FDR Updates, Mediation, Parenting Cordination

Case Law Review – The Power of Clear Expectations in Resolving Parenting Disputes

Schmuel Stern
Posted on February 13, 2020 at 1:46 pm / 0

I want to share a recent decision demonstrating the power of clear expectations. How can we implement this amazing tool in parenting dispute resolution?  I.A. v. M.Z., 2019 ONCJ 780 (CanLII) is a Motion to Change decision of Justice Sherr changing an initial final trial order – also of Justice Sherr – at 2016 ONCJ 615 (CanLII).  (a) The trial decision The parties had a brief, tumultuous relationship. The evidence demonstrated that the father was abusive, controlling and “displayed erratic conduct”. One notable event occurred after separation, at the end of an access visit, when the father unbuckled the newborn…

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FDR Updates, Mediation, Parenting Cordination

Case Law Review Parenting Coordination – Some New Cases

Elizabeth Hyde
Posted on February 13, 2020 at 1:13 pm / 0

Parenting Coordination is a hybrid process combining mediation and secondary arbitration. Although parties may have agreed to retain a PC in their consent Order or separation agreement, courts have ruled this is just an “agreement to agree” to retain a PC and without a signed PC Agreement, a court cannot order one party to execute the agreement (Horowitz v. Nightingale). In the recent case of Carmichael v. Carmichael 2019 ONSC 6313 the court was dealing with a high conflict couple who were waiting for a Section 30 assessment. As communication about their children was one of the main concerns for…

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FDR Updates, News & Updates

Divorcing on a Budget – Is it Possible?

Devorah Jonas
Posted on January 2, 2020 at 9:34 pm / 0

Divorce is expensive. If you were asked to summarize the costs that your next client would pay for total services rendered, you would be able to come up with an estimate (or at the very least a general range) without too much trouble. However, if you were asked you to do the same for another FDR professional not within your area of expertise this estimate would be more difficult for you to complete.  Think about costs for a moment – about all the plethora of fees for services that any one client  is paying over the course of their divorce:…

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FDR Updates, News & Updates

CLIFF’S NOTES: An Idea to Think About: Judge Focused Mediation and Decision Making

Clifford Nelson
Posted on January 2, 2020 at 9:28 pm / 0

I have been thinking about having those judges who preside over family matters in Ontario’s courts expand their duties to include mediation, followed by the ability to render a decision, should the parties be unable to reach agreement. Let me back up for a moment. Those of us familiar with the court system understand that it has been, for many years, far too expensive for middle-class people. With recent cuts to Legal Aid duty counsel, the family court system has put up another “stop sign” for those who are not middle-class earners. Even for the wealthy, legal fees have increased…

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FDR Updates, News & Updates

Family Law Rules: Changes on Expert Witnesses

Shmuel Stern
Posted on January 2, 2020 at 9:24 pm / 0

In September 2019, the Family Law Rules were updated to provide expanded direction on the use of expert evidence. Four months later, we can reflect on some impact as reflected in case law.  (a) First, how we got here It may be recalled that prior to these amendments, the last large amendment to Rule 20.1 was in September 2011 and included some of the same terms that are now expanded upon in the September 2019 amendments. What happened? Without delving too much into history, 2015 was the “year of the expert” as the Court of Appeal weighed in on the…

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FDR Updates

Case Law Review: Giddings v. Giddings

Brahm Siegel
Posted on January 2, 2020 at 9:15 pm / 0

Last month an important decision was released on the issue of whether an arbitration award made in the absence of a signed arbitration agreement is valid. In Giddings v. Giddings, 2019 ONSC 7203 (CanLII), the parties agreed in Minutes of Settlement that any unresolved equalization issues would be “summarily arbitrated” by Stephen Grant.  They further agreed in said Minutes they would proceed with domestic violence screening and sign an arbitration agreement confirming Mr. Grant’s appointment.  Due to an oversight, they never did. Problems began when counsel begin working with Mr. Grant before the arbitration agreement was signed.  He conducted a…

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