News, Updates & Blog

by Brook Thorndycraft, M. A., B.Ed., Acc. F.M., Q.Med.

This year on June 19, 2017, the Federal Government passed Bill C-16, which amends the Canadian Human Rights Act and the Criminal Code by adding gender identity and expression to the list of prohibited grounds for discrimination.  Just one month later on July 26th, Donald Trump tweeted that he intends to ban transgender people from serving in the United States military.  In a world in which transgender and gender non-conforming people face ongoing discrimination, violence, and harassment, the change to the CHRA could not have come sooner. While the Act does not substantially change the rights and obligations of people in Ontario (the Ontario Human Rights Code has included gender identity and expression as a protected ground since 2012), it does enshrine the rights of transgender and gender non-conforming people in the Charter of Rights and Freedoms, and defines hate speech and actions as crimes at a national level.

What does this Act means for FDR professionals serving transgender clients?  The Federal Act offers broad direction, and the details of what it means to be protected from discrimination will be determined over time through legal and human rights processes.  That being said, the Ontario Human Rights Commission’s Policy on preventing discrimination because of gender identity and gender expression provides clear and thoughtful direction as to the requirements for accommodation and inclusion of transgender people in all public contexts.  It is a great resource for understanding the kinds of discrimination that transgender people face, and steps that need to be taken to ensure everyone’s equal access to services, regardless of their gender identity and expression.*

Challenging our own biases:

An environment free of harassment and discrimination is one in which transgender people are free to decide for themselves who they are and how they want to present themselves, and are respectfully treated and even celebrated as the gender they identify as.  This means the first and most important aspect of creating an environment free of discrimination is for service providers to challenge their own biases, assumptions, and stereotypes that we started learning in childhood, about what it means to be male or female, and their own fear and discomfort around people who don’t fit those stereotypes.  It also means taking steps to ensure that biases and discriminatory attitudes are not playing out in our procedures.  Here are some tips to keep in mind:

• Respect and adhere to the name and pronoun preferences that people state, even when they don’t match legal or financial documents;
• Avoid collecting any gender-based data that is not necessary for service provision, and keep any information that conflicts with someone’s stated gender identity confidential (for example, legal names if different from their preferred name);
• Demonstrate openness and curiosity without expecting people to disclose anything about their gender identity or expression that they don’t want to;
• Avoid asking potentially invasive questions, for example, which parent carried or gave birth to a child, or how they are raising their own child in relation to gender, while also remaining open and non-judgmental if any such information is offered.

Respect for preferred pronouns and names:

It is important to have neutral intake forms and documents that enable people to provide their preferred name and pronoun, without having to disclose that they are transgender if they do not want to.  This means leaving an option for people to select something other than Male/Female, or to write how they identify by hand rather than by checking a box (see this link for more information on pronouns).  In a parenting dispute, it may also be important to ask parents how they identify as parents, and how their children refer to them.  FDR professionals tend to speak in terms of “Mom” and “Dad,” and we tend to assume that the birth parent is female.  This is not always the case.  Many transgender people who give birth do not identify as female, and may develop their own special alternatives to the labels of “Mom” and “Dad” that reflect their family reality and relationship with their children.

Providing all-gender or gender-inclusive washrooms:

Transgender people often face extreme prejudice and discrimination in public.  This is particularly true in spaces that are designated to be gender-specific, such as washrooms.  A report by TransPULSE on people’s experiences of transphobia in Ontario found, “two-thirds of trans Ontarians had avoided a public space or situation because of a fear of harassment, being “read” (perceived as trans), or outed. About half had avoided three or more spaces or situations. Washrooms were the most commonly avoided space (57% had ever avoided a public washroom)”.  The OHRC’s Policy specifically states that transgender people should have access to washrooms that match their lived gender identity. Many public institutions and non-profit organizations have, with pressure, responded to this particular right by upgrading facilities to be gender neutral or inclusive, or when that is not possible, developing gender-inclusive washroom policies that encourage people to use whichever washroom most fits their gender identity, regardless as to whether their identity matches the sex they were assigned at birth (for example, see Toronto Public Health).

Supporting people to find all-gender or gender-inclusive services in cases of IPV:

Transgender and gender non-conforming people face high rates of intimate partner violence.  This is particularly true for trans women.  In their Presentation to Legal Aid Ontario, Egale Canada discusses the fact that trans people in general, and trans women in particular face higher rates of intimate partner violence, risk police violence when reporting, and have few safe spaces they can go if their lives are at risk.  It is important to note that shelters in Ontario are legally required to house trans women.  However, not all shelters are trans-inclusive spaces, and clients may need more support and advocacy to access the services they need.  It is important for any FDR professional working with transgender survivors of violence to do extra research to find trans-inclusive shelters and services in their area.

Competency around family experiences of transgender and gender-nonconforming people:

While trans families experience conflict during separation like any other family, there are often subtle differences in how it plays out.  People who have a lived experience of not conforming to social norms around gender may also have parenting and family values that differ from mainstream norms about raising healthy children.  Without some understanding of these nuances, FDR professionals may miss important cues and information that enable them to best serve their clients.  It is important for mediators, parenting coordinators, arbitrators, and other professionals working with transgender parents or children to educate themselves – on and individual and sociological level – about people’s unique lived realities, experiences of discrimination and oppression, and values and perspectives on family.  In the long run, in order to ensure that transgender people can access equitable and competent FDR services, it is necessary to encourage and support trans people to go into the field.  This may mean developing equity policies for training programs and internships, including funding and other supports for those who may not have the resources to do it on their own.  An increased diversity of gender identities in the field would benefit all of us, by expanding our understanding of family in all it’s many forms.

*For a list of definitions, go here.
*For more information on the experiences of transgender people in Ontario, go here.

Brook Thorndycraft is an Accredited Family Mediator, Coach, and Conflict Resolution Trainer.

Flowers v. Eickmeier [1]

A decision released on June 1, 2017 by the Honourable Mr. Justice Di Luca of the Ontario Superior Court of Justice has noteworthy implications for how as arbitrators we constitute our mediation-arbitration agreements in relation to costs.

After a six-day arbitration held in June 2015, arbitrator Brahm Siegel released an award in October 2015 which, on the whole, predominantly favoured the appellant, Ms. Donna Flowers.  The arbitration concerned financial issues between her and her former common law spouse, William Eickmeier, principally whether or not a finding of unjust enrichment should be made in respect of several properties solely owned by Mr. Eickmeier at the time of separation.  In his award, Siegel found a joint family venture existed in respect of their 19-year relationship and various awards were consequently made in Flowers’s favour in regards to certain properties solely in Eickmeier’s name.

Following the release of the award, both parties submitted lengthy briefs on costs.  Each side sought over $230,000 in costs.  Of this sum, a significant portion was attributable to legal fees incurred prior to the mediation-agreement being signed in 2014.

The mediation-agreement was standard in simply checking off “costs” as an issue.  It was also fairly standard in stating that only appeals on a question of law could be brought without leave.

Siegel awarded Flowers $85,000 in costs.  In respect of her request for costs pre-dating the arbitrator’s involvement, he ruled there was no jurisdiction, relying on Islam v. Rahman[2], which stands for the principle that in the absence of a specific claim for costs, a trial judge should disallow a claim for costs of that step.

Ms. Flowers appealed the award on 11 grounds but the only one seriously argued was the “window” for costs pre-dating the arbitrator’s involvement.

The Appeal

Despite finding the costs award on the whole to be detailed, thoughtful and consistent with the arbitrator’s discretion in relation to costs, the court allowed the appeal on this one issue.  Even though the mediation-agreement was silent on what period of time was covered by “costs”, he found that since both parties’ costs briefs included claims pre-dating his involvement, it was clear they both “viewed” the issue as including costs of the entire proceeding and not just from the date the mediation-arbitration agreement was signed.[3]

In doing so, he found the arbitrator committed an error in law in his approach to Rule 24(10) of the Family Law Rules.  He found the rule does not preclude a trier of fact from determining costs in relation to “general steps not specifically related to a discrete step in the proceedings requiring judicial intervention”[4].  Costs from these “general steps” should be considered at the end of the proceeding.  Consequently, the issue was remitted back to the arbitrator for consideration on this point.

The question then arises as to what is a “general step”.  Citing the Divisional Court’s 2012 decision in Houston v. Houston[5], the court pointed to any step that does not require judicial intervention including preparation of pleadings and financial statements, property evaluations, document production, attending at questioning, review of transcripts, compliance with undertakings, and preparation for trial[6].  In contrast, all time spent preparing for a motion or a case, settlement or trial management conference would be excluded under R. 24(10) since they would be related to a discrete step in the proceeding.

Leave

A secondary issue in the decision is noteworthy, in relation to leave to appeal.  In their mediation-arbitration agreement, the parties agreed that an appeal could be launched without leave on a question of law.  Eickmeier’s lawyer argued however that Flowers required leave since section 133(b) of the Courts of Justice Act states leave is required when the appeal only concerns costs.

Justice Di Luca ruled that it was “incongruous” that a litigant required leave on a question of law from a trial judge but not from an arbitrator.[7] He found that in the absence of express language in the Arbitration Act, the parties are not free to contract out of s. 133(b) and confer jurisdiction on the court to hear a costs appeal without leave.  In any event, he found the issue at hand was a question of law not requiring leave under the terms of the agreement.  He also found that the issue of was of sufficient importance to the parties and the determination of their rights that leave should be granted under s. 133(b).

Take-Away

The case is instructive in that from now on arbitrators should pay more careful attention to what is meant by “costs” when that box is routinely checked off in our mediation-arbitration agreements.  If the parties intend for the arbitrator to deal with costs predating his/her involvement, it should be specifically stated as well as for what steps and/or the period of time.  If there is no such intention, it should be specifically stated that the parties intend and agree the arbitrator only has jurisdiction to deal with costs only from the date the mediation-agreement is signed, or, alternatively, from the date the arbitrator deems the mediation terminated.

Submitted by:

Brahm D. Siegel, B.A., LL.B., C.S., Acc. F.M., FDRP Arb.

Lawyer, Mediator, Arbitrator

Certified Specialist in Family Law (LSUC)

Accredited Family Mediator (OAFM)

Certified Specialist in Family Arbitration (FDRIO)

[1] 2017 ONSC 3376.

[2] 2007 ONCA 622.

[3] Paragraph 9.

[4] Paragraph 31.

[5] 2012 ONSC 233.

[6] Paragraph 29.

[7] Paragraph 16.

By Lorne Wolfson

Lawyers, mediators and judges often include in their family law settlements or orders a term that issues regarding the interpretation, implementation, or future variation of the settlements or orders shall be determined through mediation/arbitration with a mediator/arbitrator to be agreed upon by the parties. This can be an effective mechanism to resolve issues that arise subsequent to the settlement or order. However, a recent decision by the Ontario Superior Court has thrown into doubt the viability of this process.

In Horowitz v. Nightingale 2017 ONSC 2168, the parties signed minutes of settlement in which they resolved all issues except support. They agreed that the support issues would be resolved through arbitration with Mr. G. Shortly after the minutes were incorporated into a court order by Justice Heather McGee (and the wife had taken the benefits of its property terms), the wife fired her counsel and refused to proceed with the arbitration.

The husband brought a motion pursuant to s. 7(1) of the Arbitration Act to stay the court action on the ground that the parties had agreed to arbitrate the remaining issues. Justice Clifford Nelson accepted the husband’s argument that the provisions of the minutes of settlement providing for arbitration constitute an “arbitration agreement” under the Arbitration Act. However, he dismissed the husband’s motion on the grounds that the arbitration agreement did not satisfy the technical requirements of the Regulation under the Arbitration Act (screening for domestic violence, agreement on appeal rights, execution by the arbitrator, etc.). He relied, in part, on wording in Justice McGee’s order which he found anticipated a further arbitration agreement.

While likely technically correct, Justice Nelson’s decision will make the resolution of family law cases more difficult. In recent years dispute resolution clauses have become standard terms in most separation agreements. They provide the parties with a simple and cost-efficient method of resolving future disputes, thereby keeping these cases out of the courts. Dispute resolution clauses may provide for parenting co-ordination for custody/access disputes, determination of Section 7 expenses, annual variation of support and other minor issues that the parties cannot resolve themselves. If dispute resolution clauses are not enforceable, then the settlement of all family law cases will become more difficult.

Justice Nelson was not insensitive to the policy implications of his decision. He noted: “From a policy point of view, I am mindful of how important it is in family law to hold parties to their agreement. It is also important to have options such as arbitration and mediation/arbitration for parties who wish to opt out of the litigation process. Getting parties to agree on both process and substantive issues is, after all, an important function of case management. Had there been no formal requirements necessary, and had Justice McGee and the parties themselves not recognized the need for and importance of a formal arbitration agreement, I may have been persuaded to stay the court application or deal with the apparent breach of court order in some other manner.”

Does Horowitz v. Nightingale mean the end of secondary arbitration? Not necessarily. Well prepared counsel could attach to their minutes of settlement or separation agreements a standard mediation/arbitration agreement and have it executed at the same time that the minutes of settlement or separation agreement is signed. Although it may force the parties to address issues in the arbitration process that they would prefer to defer until the need for secondary arbitration becomes more clear, by executing the mediation/arbitration agreement up front the dispute resolution approach will satisfy the terms of the Arbitration Act and thereby regain enforceability.

It may also have the added benefit of ensuring that the parties fully understand what they are agreeing to when they include a dispute resolution clause in their separation agreements and orders. If all family law mediators or arbitrators were to adopt the same mediation/arbitration agreement, that would make this task much less onerous for counsel and more likely to be adopted.

While changes to the Regulation to the Arbitration Act would make the entire problem disappear, there seems to be little interest among policy-makers in making such changes.

Lorne Wolfson is a Toronto mediator and arbitrator with Torkin Manes. He represented the respondent in Horowitz v. Nightingale. Lawyers, mediators and judges often include in their family law settlements or orders a term that issues regarding the interpretation, implementation, or future variation of the settlements or orders shall be determined through mediation/arbitration with a mediator/arbitrator to be agreed upon by the parties. This can be an effective mechanism to resolve issues that arise subsequent to the settlement or order. However, a recent decision by the Ontario Superior Court has thrown into doubt the viability of this process.

In Horowitz v. Nightingale 2017 ONSC 2168, the parties signed minutes of settlement in which they resolved all issues except support. They agreed that the support issues would be resolved through arbitration with Mr. G. Shortly after the minutes were incorporated into a court order by Justice Heather McGee (and the wife had taken the benefits of its property terms), the wife fired her counsel and refused to proceed with the arbitration.

The husband brought a motion pursuant to s. 7(1) of the Arbitration Act to stay the court action on the ground that the parties had agreed to arbitrate the remaining issues. Justice Clifford Nelson accepted the husband’s argument that the provisions of the minutes of settlement providing for arbitration constitute an “arbitration agreement” under the Arbitration Act. However, he dismissed the husband’s motion on the grounds that the arbitration agreement did not satisfy the technical requirements of the Regulation under the Arbitration Act (screening for domestic violence, agreement on appeal rights, execution by the arbitrator, etc.). He relied, in part, on wording in Justice McGee’s order which he found anticipated a further arbitration agreement.

While likely technically correct, Justice Nelson’s decision will make the resolution of family law cases more difficult. In recent years dispute resolution clauses have become standard terms in most separation agreements. They provide the parties with a simple and cost-efficient method of resolving future disputes, thereby keeping these cases out of the courts. Dispute resolution clauses may provide for parenting co-ordination for custody/access disputes, determination of Section 7 expenses, annual variation of support and other minor issues that the parties cannot resolve themselves. If dispute resolution clauses are not enforceable, then the settlement of all family law cases will become more difficult.

Justice Nelson was not insensitive to the policy implications of his decision. He noted: “From a policy point of view, I am mindful of how important it is in family law to hold parties to their agreement. It is also important to have options such as arbitration and mediation/arbitration for parties who wish to opt out of the litigation process. Getting parties to agree on both process and substantive issues is, after all, an important function of case management. Had there been no formal requirements necessary, and had Justice McGee and the parties themselves not recognized the need for and importance of a formal arbitration agreement, I may have been persuaded to stay the court application or deal with the apparent breach of court order in some other manner.”

Does Horowitz v. Nightingale mean the end of secondary arbitration? Not necessarily. Well prepared counsel could attach to their minutes of settlement or separation agreements a standard mediation/arbitration agreement and have it executed at the same time that the minutes of settlement or separation agreement is signed. Although it may force the parties to address issues in the arbitration process that they would prefer to defer until the need for secondary arbitration becomes more clear, by executing the mediation/arbitration agreement up front the dispute resolution approach will satisfy the terms of the Arbitration Act and thereby regain enforceability.

It may also have the added benefit of ensuring that the parties fully understand what they are agreeing to when they include a dispute resolution clause in their separation agreements and orders. If all family law mediators or arbitrators were to adopt the same mediation/arbitration agreement, that would make this task much less onerous for counsel and more likely to be adopted.

While changes to the Regulation to the Arbitration Act would make the entire problem disappear, there seems to be little interest among policy-makers in making such changes.

Lorne Wolfson is a Toronto mediator and arbitrator with Torkin Manes. He represented the respondent in Horowitz v. Nightingale.

TORONTO, ON – May 4, 2017 – An Ontario Superior Court decision will lead to significant changes in the way family lawyers and their clients negotiate their settlements, says Lorne Wolfson, Chair of the Family Dispute Resolution Institute of Ontario (FDRIO).

It is currently relatively standard practice for lawyers negotiating separation agreements to include a clause providing for mediation-arbitration of possible future disagreements on implementation or interpretation of the agreement. However, in the case of Horowitz and Nightingale, Justice Nelson sitting in Newmarket declined to enforce such a provision on the basis that the formalities of entering into a private arbitration regime, as required under Ontario’s Arbitration Act, had not been followed.

“The decision will definitely lead to more work and expense upfront for those clients wishing to agree, when they finalize a separation agreement, to a future mediation-arbitration dispute resolution mechanism,” says Mr. Wolfson.

“On the other hand, it is probably the best practice for lawyers to take the steps Justice Nelson is requiring them to take, to ensure that their clients fully understand what they are getting themselves into, at the time they are agreeing to it,” says Mr. Wolfson.

For a full summary of the case, see below.

Horowitz v. Nightingale – The End of Secondary Arbitration or
New Best Practices for FDR Professionals?

Lawyers, mediators and judges often include in their family law settlements or orders a term that issues regarding the interpretation, implementation, or future variation of the settlements or orders shall be determined through mediation/arbitration with a mediator/arbitrator to be agreed upon by the parties. This can be an effective mechanism to resolve issues that arise subsequent to the settlement or order. However, a recent decision by the Ontario Superior Court has thrown into doubt the viability of this process.

In Horowitz v. Nightingale, the parties signed Minutes of Settlement in which they resolved all issues except support. They agreed that the support issues would be resolved through arbitration with Mr. G.

Shortly after the Minutes were incorporated into a court order (and Respondent had taken the benefits of its property terms), the Respondent terminated her counsel and declined to proceed with the arbitration on the issue of support.

The Applicant brought a motion pursuant to Section 7(1) of the Arbitration Act to stay the court action on the ground that the parties had agreed to arbitrate the remaining issues. Justice Nelson accepted the Applicant’s argument that the provisions of the Minutes of Settlement providing for arbitration constitute an “arbitration agreement” under the  Arbitration Act. However, he dismissed the motion on the grounds that the arbitration agreement did not satisfy the technical requirements of the Regulation under the Arbitration Act (screening for domestic violence, agreement on appeal rights, execution by the arbitrator, etc.)

While likely technically correct, Justice Nelson’s decision will make the resolution of family law cases more difficult.

In recent years, dispute resolution clauses have become standard terms in most separation agreements. They provide the parties with a simple and cost-efficient method of resolving future disputes, thereby keeping these cases out of the courts. Dispute resolution clauses may provide for parenting coordination for custody/access disputes, determination of Section 7 expenses, annual variation of support, and other minor issues that the parties cannot resolve themselves. If dispute resolution clauses are not enforceable, then the settlement of all family law cases will become more difficult.

Does Horowitz v. Nightingale mean the end of secondary arbitration? Not necessarily. Well prepared counsel could attach to their Minutes of Settlement or separation agreements a standard mediation/arbitration agreement and have it executed at the same time that the Minutes of Settlement or separation agreement is signed. Although it may force the parties to address issues in the arbitration process that they would prefer to defer until the need for secondary arbitration becomes more clear, by executing the mediation/arbitration agreement up front the dispute resolution approach will satisfy the terms of the Arbitration Act, and thereby regain enforceability.

This would have the added benefit of ensuring that all parties to these agreements actually understand the implications of doing so and are providing truly informed consent to the mediation-arbitration process. One of the recurring problems that arises in this field is that of parties not fully appreciating all the implications of agreement to a future med-arb dispute resolution provision. Being forced to put their minds to all of the details at the time they agree to the term might benefit parties, counsel and arbitrators alike.

If all family law mediators or arbitrators were to adopt the same mediation/arbitration agreement, that would make this task much easier for counsel and more likely to be adopted. This is a task that FDRIO is currently undertaking among its membership.
 

By Lorne Wilson & Hilary Linton

Christie Blatchford’s recent stories of those feeling unfairly treated by the family courts are compelling. Indifferent judges. Biased laws. Tragic endings. Concludes Blatchford: “‘The family law system is broken”.

We who provide family dispute resolution services see things differently. Our large, diverse group of professionals sees a more positive version of this “broken” system. We have formed a not-for-profit, The Family Dispute Resolution Institute of Ontario (FDRIO), to tell that story.

Blatchford writes about truly dysfunctional divorces in which the spouses can only relate to each other by fighting at any cost. We see these people, too. We often help resolve their disputes long after they have spent all they have on legal fees. We wish they would have come to us sooner.

It is convenient to blame the lawyers-sometimes justifiably. But lawyers are required to take instructions from their clients. We see people spending $200,000 to obtain a worse outcome than what they could have negotiated in mediation or collaborative law. Their kids usually pay the highest price for wars waged by such parents.

But the real story is this. The vast majority of separating Canadians resolve their family law disputes peacefully, affordably, and in a way that allows their children to live happy and healthy lives. Not as interesting as Blatchford’s stories, but the family law system is not as broken as you might think.

We know this because we are among the hundreds of skilled, affordable family dispute resolution professionals who resolve these cases every day. Some of us do it as family mediators working in the courts Blatchford describes, where hundreds of cases are settled each year with free and subsidized mediation, available to virtually every separating couple in the province. Others of us do it as privately hired mediators, arbitrators and collaborative professionals.

Perspective Matters

It is a truism that few are ever happy with the result of family litigation. Blatchford accepts her subjects’ stories without input from the other spouse, lawyers or court record. Rarely do the parties even tell the same story. And family law is complex. Often people don’t understand the legal principles or why the court ruled as it did. Judges cannot write letters to the editor.

As family lawyers, mediators, arbitrators and educators we have a good vantage point from which to assess the validity of these criticisms and to offer some comments on the state of the family law system.

Need for Triage

A person who walks into a hospital cannot demand a particular course of treatment. A nurse takes a detailed history and refers the matter to a doctor for assessment of the appropriate interventions. Family courts should operate the same way, aiming to keep as many out of court as possible. After triage (starting with assessing risk of domestic violence), potential litigants should be referred to options including counselling, mediation, assessment, or arbitration. Only if there is no suitable out- of- court option should litigation be used.

Unified Family Court

For over forty years, every study of the family justice system has recommended that the Unified Family Court be expanded across the province. This single change would allow litigants access to more support and would ensure the same judge hears their entire case.

Progress

Significant progress is happening. Family Law Information Centres in family courts have Information & Referral Coordinators who, for free, provide a vast array of support and information for separating couples. Free and subsidized family mediation programs across the province are universally rated very highly. Counselling, legal advice and supports for victims of violence are now available through the Family Court Support Worker program.

The number of “self-reps” in family court (over 70% in some) is a significant problem. Judges spend too much time explaining procedure to unrepresented parties, leaving insufficient time to deal with trials, motions and case conferences. But here too, there is progress.

The recommendations of the Bonkalo Report (to expand the use of family law paralegals) may assist those who cannot afford lawyers to be better prepared and to understand the court process. Legal Aid Ontario has introduced Certificates specifically for those in mediation— meeting a real need. But income thresholds are still too low and funding continues to fail to meet demand.

There are real challenges and we cannot stop seeking answers. But there is also a lot that is working well and getting better. Blatchford’s stories are important to hear and more important to be placed into context.

Lorne Wolfson is a Toronto family lawyer, mediator and arbitrator at Torkin Manes LLP. He is also the Chair of FDRIO.

Hilary Linton is a Toronto lawyer, mediator and arbitrator with Riverdale Mediation Ltd. She also operates Toronto’s court connected family mediation service, mediate393.ca.