by Rebecca Bromwich as appeared in The Lawyer’s Daily on, September 11, 2018
Working as director of the graduate diploma in conflict resolution program at Carleton University’s Department of Law and Legal Studies, I am grateful to have received a $45,000 research grant from the Law Foundation of Ontario’s Access to Justice Fund to take a closer look at access to justice and co-parenting issues. I have a mixed team of law and legal studies students who are finding out what people need and what’s going wrong.
In addition to conducting case law research, over the next year, I will be circulating surveys and asking questions of those of you who are experts in the field of family law to learn more about your experiences. I look forward to hearing from you.
As lawyers, we are all familiar with what retired Chief Justice Beverley McLachlin, among other jurists, has drawn attention to as a “crisis” situation where Canadians cannot get effective access to justice. There is certainly a crisis in access to justice in the family law area.
Despite the attention that has been drawn to the issue of access to justice, in family law matters, which make up about one-third of the cases before the courts across Canada, most parties have no counsel. As statistics have revealed, as those of us who practise in the area have experienced, and as Nicholas Bala and other family law scholars have discovered, the majority of parties coming before family courts are self-represented litigants, and the percentage of self-reps in family courts keeps increasing.
Online technology is growing in its capacities and ubiquity. This may — or may not — be an optimal moment to use technology to support human solutions that shift custody and access disputes out of the formal court milieu. We are seeing a confluence of events where online technology, including artificial intelligence (AI), is making it possible for tech solutions to be proffered to a growing variety of legal problems.
We are seeing burgeoning use of online dispute resolution for small claims matters, and even AI being used in the U.K. to resolve parking tickets. At the same time that we are witnessing increasing numbers of people in family law who simply can’t afford lawyers, so are now unrepresented in court.
Parties are voluntarily using legal tech apps in relation to family law matters, and, sometimes the courts are turning to requiring parties to use apps to help them manage ongoing custody issues.
These apps can help parents communicate by facilitating their sharing of scheduling requests, as well as photographs, medical records, school records and other material. Over the past decade, judges dealing with matters in family law issues across Canada have started to order parties to use privately operated, for-profit U.S.-based apps to manage their conflicts concerning custody and access issues.
These apps raise legal and sociolegal questions about how social interactions between family members are being affected by the use of tech; how well people using the tech understand their family law rights and responsibilities; and whether and how those technologies can be manipulated in problematic ways.
We plan to collaborate with lawyer Jennifer Reynolds of the Ottawa family law firm Fresh Legal as well as the Family Dispute Resolution Institute of Ontario and Legal Aid Ontario in disseminating the survey for this research. Our findings will be made publicly available next year.
At the same time, we are working with software engineering students who are looking at the parameters of possible not-for-profit, Ontario-based technical solutions. This law and society research is linked to a collaboration with Carleton’s software engineers to develop a non-profit application that could benefit Ontarians.
I am excited that the Law Foundation of Ontario has provided me with this opportunity to investigate what apps are being used, to facilitate communication between co-parents, in what numbers, and how users are experiencing this practice. Ultimately, I want to learn how these apps are affecting levels of conflict between co-parents or impacting the best interests of children.
The results of my study will be made available next summer.
To participate in the survey, click here.
Rebecca Bromwich is director of the graduate diploma in conflict resolution program at Carleton University’s Department of Law and Legal Studies in Ottawa. You can e-mail her at RebeccaBromwich@cunet.carleton.ca
by Matthew Krofchick
In this last article on the series about joint retainers, we will be looking at how using a joint retainer can be used to narrow down issues to help resolve difficult financial situations.
A common misconception that is joint retainers can only be used by parties that are acting amicably. In fact, one of the benefits of a joint retainer is that it helps parties narrow their arguments down to fact-based scenarios.
Let’s take a look at a simple example where the parties’ respective fact scenarios lead to significant monetary differences:
A Little Background
- Jack and Diane were married in 1982 in a small town in the rural heartland.
- In 1991 Diane opened a widget business of which she is the sole owner.
- Although Jack was a football star in high school, life went on and throughout their marriage Jack stayed home and cared for their kids.
- In 2013 Jack and Diane separated.
- Diane received personal benefits from her ownership of the business in the amount of $30,000 per year
- All corporate profits should be attributed to Diane.
- All of these expenses are business-related and they and any associated income tax gross-up, should therefore not be included in her income for support purposes
- The corporate profits are needed for reinvestment into the business.
In this particular example since Jack was a stay-at-home father for so many years he has no income. Hence, each dollar added to Diane’s income significantly affects the support Jack is entitled to. By conducting a review of the disputed expenses, and any related receipts, invoices, and other pertinent information a valuator can often provide clarity on which expenses would qualify as legitimate business expenses and which should be included in Diane’s income for support purposes.
Valuators can also opine on the appropriate amount of corporate profits to be included in Diane’s income, taking into consideration what amounts the business would likely need to retain in order to meet their ongoing obligations. This could include reviewing historical bank statements, discussing any major capital purchases the business may need to make, reviewing debt covenants, and comparing the business’s operations to those of its peers to determine how much cash it would need to retain to sustain their current operations.
Where the parties continue to disagree on the facts, the valuator may be tasked with preparing multiple scenarios so that both sides have access to the conclusions they may be looking for. This provides them with the full scope of information and the impact of each of their respective fact scenarios before entering into negotiations.
In the normal course of litigation each party’s valuator would prepare their respective reports, each of which could be critiqued by the opposing valuator (perhaps numerous times) with each treating these disputed issues differently.
If, on the other hand, the parties had agreed to a joint retainer there would be no need for competing reports. When a single valuator is retained we eliminate any arguments about methodology and credibility; and as discussed in earlier articles in this series, the cost savings of doing so can be substantial as a result.
Consider, for example, what could happen when two parties choose to retain their own competing experts. They may each be provided with what appears to be two wildly different conclusions but it is often the case that appearances can be deceiving, because once taxes and equalization are considered the gap between their positions closes significantly. Moreover, once the cost of these competing reports and any potential litigation are factored in they may come out of the process having spent a small fortune with little or no benefit to show for it.
So, the question for your case becomes: is it worth each party retaining their own expert as opposed to a jointly retained one?
Although not every case can be done with a joint retainer, the notion should be explored before being written off as an unworkable solution since the potential benefits can be significant.
Dr. Rebecca Bromwich of Carleton’s Department of Law and Legal Studies and FDRIO Board member, has received a $45,000 research grant from the Law Foundation of Ontario’s Access to Justice Fund to take a closer look at U.S. apps that help separating parents manage child custody and child access. Dr. Bromwich is also the Director of the Graduate Diploma in Conflict Resolution program at Ottawa’s Carleton University.
In Ontario, judges in Family Courts have started to order parties to use privately operated, for-profit, U.S.-based apps to manage their conflicts concerning custody and access. This raises a number of legal issues, says Rebecca, observing that child custody and access apps are an unregulated space affecting minors in Canada.
There a quite a few parenting apps available: parenting apps that assign household chores to children, to teach them responsibility; cloud-based baby monitors; family organizers, shared calendars, and task list; nursing trackers; apps that tell you the whereabouts of your children; and even apps that keep toddlers busy in waiting rooms when no other entertainment is available.
“How are these apps being used? Are they being used as intended, or are parents using them for other things, too? Are there features additional features that parents might find useful? Do these apps capture correct legal information for our Ontario courts? How do they affect conflict resolution between spouses, or partners? And, how are these parenting apps affecting the best interests of the children?” asks Dr. Bromwich.
She says she will take a multi-constituent approach to her research, meaning consultation with practitioners including family lawyers, family mediators, family therapists as well as judges (to the extent possible), consulting the apps developers themselves, and parents already using these apps.
A special area of focus for her research on parenting apps will be cyber security, specifically the collection, storage, and access of private information.
“Hacking and privacy breaches are in the media every day. So, cyber security is a huge issue for these parenting apps,” says Rebecca.
There is now documented evidence that Amazon’s Alexa and Google Home apps, both home assistants that use artificial intelligence (AI), can be used by spouses, and third parties, for surveillance as well as for malfeasance, particularly domestic violence. The New York Times published an article titled Thermostats, Locks and Lights: Digital Tools of Domestic Abuse on June 23, 2018.
For example, these apps work with shared calendars; supposing that the calendar containing pick-up and drop-off times gets hacked by a third party and who uses that information to compromise or harm a child? Or the apps can somehow be linked to cameras, to spy on vulnerable children. Or if the apps capture the child’s medical information (the child is epileptic, diabetic, or has severe allergies, etc.), that information could also be used to compromise or harm a child.
This law and society research is linked to a collaboration with Carleton’s software engineers to develop a non-profit application that could benefit Ontarians.
“We have a mixed team of Law and Legal studies students who are finding out what people need and what’s going wrong,” she explains.
“Our findings will be made publicly available. At the same time, we are working with software engineering students who are looking at the parameters of possible not-for-profit, Ontario-based technical solutions.”
Bromwich says the results of the study should be available by summer 2019.
The family dispute resolution (FDR) field has grown exponentially over the past ten years. This has been in response to the changes occurring in family law generally: more unrepresented people, backlogs in some courts, frustration with a non-specialist family law bench, lawyers becoming disenchanted with the traditional adversarial approaches, increased awareness of the prevalence of family violence, growth in communities where English is not a first language, cultural differences demanding different approaches, ever-growing access to information on the internet, and more.
As the world around us has changed, so too has the way FDR services are delivered.
The demand for free and subsidized family mediation and information services has grown with the government’s increased commitment to funding. Legal Aid has adapted its services to fund legal advice for those in mediation or negotiating agreements. The courts could not function without Information and Referral Coordinators in the Family Law Information Centres offering triage, providing referrals, assisting with forms and helping parties understand their FDR options. The Mandatory Information Programs receive high satisfaction ratings from those who attend them because the need for information and support has never been greater.
Collaborative practice is now the process of choice for most people seeking to work with family lawyers. The growth of private FDR services like mediation-arbitration and parenting coordination, processes that hardly existed ten years ago, demonstrates the demand for new ways to respond to new realities. Sadly, our family court support workers are in great demand, evidencing a real need to find dispute resolution processes that actually meet the needs of victims of abuse and violence and their children. In private practice, an entirely new area of expertise, screening for power imbalances and family violence, has grown up. FDR professionals are increasingly aware that they and their clients work in a danger zone, and that safety of clients and professionals must be a priority.
As the field has matured and become more diverse, the need for a single resource for all of us has become apparent.
FDR professionals no longer offer single services; most of us offer some combination of mediation, collaborative practice, arbitration, parenting coordination, counselling, coaching, consulting-triage and/ or screening services. Whether you are a lawyer or a mental health or other professional, you no longer assume that the client at your door is necessarily at the right place. We offer many services because our first job is to assess which process might be best for a particular family… and we all need to understand how all the other processes work in order to do that job well.
As these new processes have evolved, so too has the need for better and more transparent standards of training, practice, and certification. Many people do not understand the difference between med-arb, mediation and parenting coordination. There are no rules or Standards of Practice for many of these services.
Hence, the creation of the Family Dispute Resolution Institute of Ontario (FDRIO)
A not-for-profit, FDRIO was conceived by OBA members Tom Dart, Richard Shields Barb Landau and me over a year ago. We believed that FDR is entering a “golden age” and that the time was ripe for a new, multi-disciplinary professional organization that promoted and supported all forms of FDR. The idea attracted a strong, diverse group of FDR professionals and before long the idea took off.
We now have a growing membership consisting of family lawyers, mediators, arbitrators, collaborative professionals, coaches, financial professionals, child specialists, parenting coordinators, family violence specialists, among many others. Our board consists of mental health professionals, financial specialists, coaches, mediators, arbitrators and collaborative professionals.
Our mission is to provide a place for all FDR professionals to share expertise, establish harmonized standards of practice, and create compatible credentialing processes and certifications. We seek to provide a strong, progressive and credible voice for the FDR field along with transparent, quality standards of practice for every FDR process where ever possible. We are working with existing FDR organizations to find efficiencies and areas of collaboration. Informing the public of all FDR options and supporting the highest standards in FDR.
About the Author
Hilary Linton, of Riverdale Mediation, is a Toronto lawyer whose practice is restricted to providing mediation, arbitration, teaching and consulting services.
Walsh Family Law Negotiation Competition
On March 13-14, the FDRIO will be working with mediate393 inc. and a large organizing committee to help present this inaugural law school family law negotiation competition. Sponsored by the Family Judges of the Superior Court of Justice, the Ontario Association of Family Mediation and Epstein Cole LLP, along with many other law firm and individual sponsors, this event presents family law students with a great opportunity to practice their negotiation skills.