Court Cannot Order Parties into Arbitration or Limit Child Support Variation Applications

In SSG v. SKG 2022 ABCA 379 Canlii, after a 26-day trial involving a high-conflict couple, the court made orders for a detailed parenting plan for two children, ages 9 and 10-years old, retroactive and ongoing child support payable by the father to the mother, and an order that the parties retain a parenting coordinator with arbitration authority to “resolve the day to day conflict that may arise related to the detailed parenting plan or in relation to any conflict over joint decisions.” The court also ordered that the parties could not bring an application to vary child support unless the father’s line 150 income deviated upwards or downwards by more than 20% and the mother could not bring a variation application based on a decrease in her income.

The parties, who had been married for 7 years, set down a 10-day trial which ballooned into 26 days and generated hundreds of pages of written submissions. Both parties indicated a willingness to have certain issues arbitrated, however, after the trial reasons were handed down on February 14, 2022, they appeared again before the court on July29, 2022 to resolve several outstanding matters. Because they disagreed on the form of order for the July 29 hearing, the trial judge drafted the order which read:

” Within 30 days of the date of this Order, the parents shall retain a Parenting Coordinator with arbitration powers, the cost of which shall be shared equally between the parties. If the parties cannot agree on a Parenting Coordinator they will remain Krysta Oswald.

When first retained, the Parenting Coordinator shall be provided with all reports, judgments, prior arbitration awards, and court orders and shall speak to Dr. PP, Ms. R. and Dr. F.”

Before the order was made the children’s mother made the following submission to the court:

” I have thought about that a lot. We have participated in parenting coordination multiple times. Everybody agrees it’s been nothing short of a disaster. It is expensive and now there is a mountain of paper that I understand the court says…before we go see somebody, they have to go through that and then they have to consult all these people. I don’t see that very likely to get a timely decision about anything that comes up.”

The mother appealed both the arbitration order and the order restricting a child support variation.

The appellate court determined that the trial judge had no authority to impose arbitration on the parties, relying on Durocher v. Klementovich 2013 ABCA 115 where the court said:

…it is a principle of access to justice that the parties can bring any dispute they may have to the Court…if would be extraordinary to decline to decide, must less compel the parties to submit to a private adjudicator….a court of competent jurisdiction does not permit the delegation of that power to private arbitrators. An obligation to arbitrate must be founded in a statute or an agreement.”

With respect to the order restricting applications to vary child support, the appeal court accepted that the trial judge was “well-intentioned” and wished to discourage litigation, but nothing in the Divorce Act or the Child Support Guidelines authorized him to limit the circumstances in which a variation application could be made.

The mother’s appeal of both issues was allowed and the orders were set aside.

Lawdiva aka Georgialee Lang

Misconduct and Lack of Contribution are not Grounds for Reapportionment of Property

In He v. Guo 2022 BCCA 355 the court considered whether a false immigration complaint levelled by Mr. He against his wife of 3 ½ years was a proper consideration for a 100% reapportionment of property owned by Ms. Guo in her favour. 

The facts revealed that after an online connection, the parties began living together in November 2014 and separated in early 2018. Ms. Guo was in Canada on a visitor’s visa with her 10-year-old son who had a student visa. She purchased a home in August 2014 where the parties resided. 

During the marriage Mr. He agreed to support her and her son’s applications for permanent residency status by giving a financial undertaking. Permanent residency was granted in December 2017. But apparently angered by their separation he filed a document with Immigration Canada titled “Immigration Marriage Fraud Report” in April of 2018 asserting that the marriage was a fraud. He also alleged that Ms. Guo had “beat him, threatened a witness and was dating some men for money”. 

The trial judge rejected Mr. He’s allegations which should have been the end of it, but the judge invoked section 95 of the Family Law Act which provides for an unequal division of property based on “significant unfairness” and found that it would be significantly unfair to condone Mr. He’s “malicious act of filing a baseless Immigration Marriage Fraud Report”. This together with the trial judge’s findings that Mr. He contributed very little to the family property led him to reapportion the property entirely to Ms. Guo. 

The factors for reapportionment in section 95 are as follows:

  • The duration of the relationship;
  • The terms of any agreement;
  • A spouse’s contribution to the other spouse’s career or career potential;
  • Whether a spouse caused a significant increase or decrease in the value of family property;
  • The fact that a spouse substantially reduced the value of family property or disposed of or converted family property causing the other spouse’s interest to be defeated or adversely affected. 
  • Any other factor that may lead to significant unfairness; 
  • The extent to which the financial means and earning capacity of a spouse has been effected by the responsibilities and other circumstances of the spousal relationship in relation to the objectives of spousal support. 

Earlier appeal cases confirm that the “threshold for departing from equal division of property is high”. VJF v. SKW 2016 BCCA 186 and Khan v. Gilbert 2019 BCCA 80. 

The issue of using section 95 to compensate for misconduct was considered in Singh v. Singh 2020 BCCA 21 where a bad faith bankruptcy was filed to avoid paying the claimant’s costs in respect of a property. This behavior was  not characterized as “family violence”, unlike the finding in He v. Guo. However, in Singh Madam Justice Garson said:

…I must consider whether the factors the judge relied on are properly the subject of a s. 95 (2). In my view, they are. The economic characteristics of a spousal relationship would clearly…permit consideration of the costs of bankruptcy and a party’s motivation for entering bankruptcy…and the consequent impact on the value of the asset…”

The court in He v. Guo held there was nothing in section 95 that indicates that family violence should be awarded special consideration absent impact on the “economic characteristics of a spousal relationship.” Ms. Guo testified that she was emotionally shaken by her husband’s conduct but led no evidence that his report to Immigration caused any negative financial consequences or otherwise hindered her self-sufficiency. The court stated:

“In these circumstances, reliance on the malicious filing of a baseless report to reapportion property amounts to an award akin to damages for misconduct or, at the further extreme, punitive damages for misconduct. Neither, in my view, is contemplated by the applicable provisions, and is contrary to the determined attempt to eradicate general enquiries on the relative conduct of parties as a feature of family litigation, absent conduct relevant to the particular relief claimed in the proceeding.” 

With respect to Mr. He’s limited financial contribution to property as a reason to reapportion the property entirely to Ms. Guo, the court held that to find that a spouse of modest income loses the presumptive equal sharing by reason only of having made a small financial contribution is contrary to the Family Law Act and an error in law. 

The appeal court set aside the trial decision and granted Mr. He a 20% interest in the family property. 

**This article was first published by The Lawyer’s Daily, a publication of LexisNexis Canada.

SCORCHED EARTH LITIGATION: DETRIMENTAL TO CHILDREN AND A BURDEN ON SCARCE JUDICIAL RESOURCES

In a family law case that was described as a clear example of the need for judicial economy and consistency, which  invoked the integrity of the administration of justice, the court acceded to the claimant wife’s application to declare findings of fact in previous litigation between the same parties unassailable in their subsequent matrimonial litigation. This family law case, KS v. JTP 2022 BCSC 1727 included the matter of whether the children’s mother ought to be able to relocate with the children to Germany, her original home. 

 In an earlier 16-day civil trial where the wife, KS, received a damage award of almost $800,000 and special costs for multiple instances of domestic violence, the family court judge ruled that it would be an abuse of process to allow the husband to challenge the factual findings made by the civil trial judge in three separate hearings, described as the “Adjournment Decision, the “Merits Decision”, and the “Costs Decision”, despite his pending appeals of two of these orders. 

In the family litigation the parties had engaged in at least fourteen contested interlocutory applications wherein the husband had filed 29 affidavits and the wife filed 16.  The findings of fact from the civil trial included egregious incidents of spousal abuse, some in the presence of the children, leading to injuries to the wife that included a concussion, a mild traumatic brain injury, and significant psychological injuries which were the result of malicious, humiliating and oppressive behavior on the husband’s part. 

 The court also referred to the husband’s attempts to remove the wife’s civil counsel before the trial by alleging a conflict of interest. When that was not successful he reported the wife’s lawyer to the Law Society in a complaint that was summarily dismissed. 

 The civil court judge found that the husband’s testimony was not credible, but family trial judge Madam Justice MacNaughton determined that she would make her own findings with regards to the credibility of the parties and that credibility findings in earlier  litigation was only one consideration. 

She then reviewed the doctrine of issue estoppel highlighting the three necessary conditions, noting that the law was inconsistent with respect to the “finality” of a decision under appeal:

1)     that the same question has been decided;

2)     that the judicial decision which is said to create the estoppel was final; and,

3)     that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

However, Justice McNaughton decided she did not need to consider the finality issue as she determined that it was more appropriate to view this case under the abuse of process doctrine. 

Relying on Gonzalez v. Gonzalez 2016 BCCA 376 she affirmed that abuse of process engages the court’s inherent power to prevent the misuse of its procedure in a way that would be unfair to a party, or bring the administration of justice into disrepute. 

She also noted that the abuse of process doctrine is more flexible, precluding re-litigation where one or more of the requirements of issue estoppel were not met and stating that in the doctrine of abuse of process the principles of judicial economy, consistency, and finality were significant, and that proportionality and accessibility are important in family law, citing section 199 of the Family Law Act:

(1) A court must ensure that a proceeding under this Act is conducted

(a) with as little delay and formality as possible, and

(b) in a manner that strives to

(i) minimize conflict between and if appropriate, promote cooperation by, the parties, and

(ii) protect children and parties from family violence.

MacNaughton J. found that relitigating issues that were determined after a lengthy civil trial did not further the children’s interests and that JTP could cross-examine KS, make submissions, and lead evidence about any of the factors concerning the best interests of the children since the release of the Merits Decision, but could not challenge the civil judge’s factual findings regarding the assault, which he plead guilty to in criminal court. 

Typical of high conflict family cases, the facts also revealed that JTP had three different counsel throughout the family litigation and frequently was self-represented; that he stopped paying child support and the children’s counselling expenses a year before the commencement of the family trial;  that the parties had expended hundreds of thousands of dollars in litigation costs; and that JTP sought multiple adjournments of the family trial, receiving two adjournments with the last adjournment specifying that the new trial date was peremptory on him. That did not stop him from seeking a further adjournment of the trial before Justice MacNaughton, which was denied.

A clear case of “scorched-earth” litigation that despite the best efforts of a phalanx of judicial officers was nigh impossible to prevent, to the detriment of the children and a heavy burden on scarce judicial resources. 

This article was first published by The Lawyer’s Daily, a publication of LexisNexis Canada.

Lawdiva aka Georgialee Lang

Discretionary Trust Does Its Job in Family Law Case

In Cottrell v. Cottrell 2022 the BC Supreme Court addressed the subject of discretionary trusts and how and when they are divisible as family property between separated spouses. The Cottrell’s began their marital relationship in 1994 and separated in 2017. Paul Cottrell was a marine biologist while Joanne Cottrell was primarily a stay at home mom to their two children.

Prior to meeting one another and when Joanne was still in university her parents Robert and Patricia Muster struck it lucky and won $5 million from Lotto 6/49. The Musters established two trusts and over the years gifted funds to their children including Joanne. In 2010 the trusts were reorganized and two new trusts were settled by the Musters. The trusts were discretionary trusts and the beneficiaries were Joanne, her parents and her brother. Her parents were the trustees. Upon the death of Mrs. Muster in 2012, Joanne and her brother were added as trustees, however, Joanne was never actively involved in managing the trusts. At this time Joanne also received monies from the trust which she placed in a personal bank account that she maintained at the date of separation such that her husband was compelled to concede that the remaining funds were excluded property.

When the Cottrell marriage broke down, Mr. Muster asked Joanne to resign as a trustee and as a director of a related company. Mr. Muster testified that given the litigation between his daughter and her husband he wanted to distance Joanne from the corporation and the trusts. Paul Cottrell viewed this as indicating a conspiracy to deny him any alleged interest he could assert over these properties. The court did not agree.

Expert testimony at trial confirmed that the trusts were entirely discretionary, that Joanne had a “beneficial” interest within in the meaning of S. 84 of the Family Law Act, and that Joanne’s interest in the trusts were excluded property under s. 85 of the Family Law Act as she did not contribute funds to the trusts, neither was she a settlor of the trusts. However, the court noted that pursuant to s. 84(2) (g) of the Family Law Act any increase in value of excluded property qualified as divisible family property.

The expert also stated that there were several ways Joanne’s interest could be extinguished including a distribution of all the trust property to Mr. Muster or to other beneficiaries to her exclusion or Joanne could die before receiving any further trust distributions.

While Mr. Cottrell’s counsel did not object to the admission of expert evidence with respect to the law of trusts in family law, the trial judge referenced Walsh v. BDO Dunwoody 2013 BCSC 1463 where the court refused to admit expert evidence where the evidence was used to educate the court on the interpretation of domestic law and suggest what the court’s conclusions should be. Inherent in this view is that judges are deemed to know the law. The trial judge did not formally exclude the expert’s evidence but stated that he had reached his own conclusions independent of the expert’s evidence.

The issue before the court was the conceptual difficulty of reconciling an increase in the value of a discretionary interest in a trust as family property alongside the traditional notion that discretionary beneficiaries have no property rights in discretionary trusts or the assets of the trusts. Further, Joanne had no ability to compel the trustees to make a distribution to her.

Mr. Cottrell argued that the Family Law Act provided the path for him to receive an interest in the growth of the trust property which could then be quantified. He pegged his interest at $1.3 million based on financial statements and property assessments produced in the litigation.

The court recognized that there was no clear jurisprudence on this discrete issue, but that Mr. Cottrell’s claim must be analyzed by reference to the provisions of the Family Law Act. In examining the language of the Act the court stressed that when the relevant sections are read conjunctively, ss. 84(2)(g) and 85 (1) (f) provide only that the increase in value of the spouse’s beneficial interest in property held in a discretionary trust is family property. These provisions do not state that an increase in the value of the actual property held in a discretionary trust is family property.

The court concluded that the onus fell on Mr. Cottrell to establish that there had been an increase in value in the trusts and he had not met the onus. Justice Brongers held that given the uncertain nature of Joanne Cottrell’s contingent beneficial interest it could not be said that at the time of trial there had been an increase in her discretionary interests value.

With respect to Paul Cottrell’s valuation of trust property, the court noted that his valuation did not reflect the value of Joanne’s beneficial interest. Mr. Cottrell’s claim was dismissed as was his claim for a reapportionment of family property in his favour on the basis that his wife would be receiving a future “windfall” from a discretionary trust, gift or inheritance. The court reasoned that none of the factors raised by Mr. Cottrell fell within the provisions of s. 95 of the Family Law Act.

The discretionary trust is a powerful legal tool in estate planning that covers many different situations and purposes. Its use in family law permits an individual to enjoy the beneficial use of and interest in property while protecting the property from claims under the Family Law Act.

Appeal Court Considers Role of Foster Parents and Customary Care Arrangements

A six-year old indigenous girl was the focus of the Ontario Court of Appeal’s decision in ML v. Dilico Anishinabek Child and Family Care 2022 ONCA 240 where the court considered whether the child’s caregivers since she was 8-days old could bring a parenting application pursuant to the Children’s Law Reform Act. Dilico had apprehended the child and placed her in the temporary care of the appellants pursuant to a Temporary Care Agreement.

A motions judge had ruled in the appellants’ favour, however, an appeal judge overturned the decision, holding that as “foster parents” they were precluded from bringing the application.  This judge also held that there was a “customary care agreement” in place that authorized Dilico to make placement arrangements with no need for judicial oversight. 

The young girl, JT, was a special needs child whose biological mother, DC, was a member of the Berens River First Nations of Manitoba. Her father, BT, was not indigenous. Both parents resided in Thunder Bay Ontario, as did JT’s caregivers, ML and DL.  JT had a loving relationship with her biological mother, but DC had never parented her, realizing that she could not care for her. DC made it known that she wanted JT to leave the care of the only caregivers she had ever known who she called mom and dad,  ML and DL, and leave Thunder Bay and take up residence with DC’s maternal aunt, RC, who lived in the Berens River First Nation. Dilico was on side with DC’s wishes, hence the application by ML and DL and the subsequent appeals.

ML and DL first brought a parenting application in June 2017, which was met with Dilico filing a protection application under the Child, Youth and Family Services Act, 2017, which led to an automatic stay of ML and DL’s parenting application. ML and DL brought an application to be added as parties to Dilico’s application but Dilico was granted leave to withdraw their application and did so. Meanwhile JT remained with ML and DL.

The Ontario Court of Appeal identified the uncertainty surrounding the nature, the number, and the circumstances of various care agreements signed following Dililco’s apprehension of JT, finding that many of the agreements were not signed by DC, BT or the Berens River First Nation. In July and August 2018 Dilico, Berens River First Nation and DC executed an agreement. It was not clear whether BT was approached to be a signatory. The agreement did not identify a customary caregiver and JT remained in the care of the appellants. 

ML and DL attempted to pick up where they had left off with their parenting application which saw Dilico bring a motion to strike their application, arguing that the appellants were foster parents and thus ineligible to bring an application.  While their parenting application was pending they brought an urgent motion to prevent Dilico from sending JT to Manitoba. That order was made, as well as an order that JT continue to reside with the appellants on a temporary basis. 

The first appeal order was stayed pending the Ontario Court of Appeal’s consideration of the case and an order was made appointing the Office of the Children’s Lawyer to represent JT’s interest. Two intervenors were also permitted to be involved: the Association of Native and Child Services Agencies and the Nishnawbe Aski Nation.

There were two issues on appeal: Whether the appeal judge erred in concluding that the care agreements provided authority for Dilico and Berens First Nation to make legal decisions on behalf of JT without review by the courts and whether the appeal judge erred in determining that ML and DL were foster parents and barred from making a parenting order for JT. 

All parties were in agreement that the inability of JT’s mother to care for her directly engaged Ontario’s  child protection legislation.  Section 1(2) of the Act provides that First Nations, Inuit, and Metis peoples wherever possible should be entitled to provide their own family and child services and that the cultures, heritages, and traditions of indigenous peoples should be respected. 

Customary care  is defined in the legislation as the care and supervision of a First Nations, Inuk or Metis child by a person who is not the child’s parent in accordance with the custom of the child’s band or community. This concept plays a central role in the mandate of section 1 (2) and is the preferred approach for indigenous children as opposed to court-related processes and care.  Courts can become involved in customary care arrangements where there is evidence of bad faith or improper procedure. 

Dilico conceded that the care agreements involving JT were not typical customary care agreements, but nevertheless sought to rely on the legislative preference for customary care, despite placing JT in a home that did not satisfy the definition of customary care nor invoke the customs of the Berens River First Nation. In essence, Dilico did not appear to have complied with the legislation to “make all reasonable efforts to pursue a plan for customary care.” 

The court also pointed out the irregularities in the agreements entered into. Many were not signed by JT’s father, one was not signed by either JT’s mother or father and another one was not signed by the First Nation. The appeal court concluded that the customary care agreements were invalid. 

The court then turned to the issue of the status of the appellants and determined that their ability to apply for a parenting order was not tied to whether they were foster parents or  customary caregivers, noting that while much argument in the courts below focused on whether they were foster parents or customary caregivers, nothing turned on it.  The court cited authority for the proposition that both foster parents and customary caregivers can be made parties to a child protection proceeding.

The court also remarked that the court below had erred in finding that foster parents could not apply for parenting orders. The rule cited by the lower appellate court only dealt with who must be a party to a parenting application and did not limit others who may be added as parties citing AM v. Valoris Pour Enfants et Adultes de Prescott-Russell 2017 ONCA601. The court also stated that section 21(2) of the Children’s Law Reform Act is very broad: “any person…may apply to a court for a parenting order…”. Further, section 62(3) of the Act would require the appellants to be parties by virtue of their involvement with JT. 

The court then turned to consider the relevance of the federal legislation, An Act respecting First Nations, Inuit and Metis Children, Youth and Families SC 2019 c.24, legislation that establishes national minimum standards for child and family services delivery to indigenous children and families. 

This Act permits First Nations to displace provincial child protection legislation, but Berens River First Nation did not seek to enter into a tripartite agreement under the federal legislation and so Ontario’s child protection legislation governed.  Dilico and the intervenors argued that the Children’s Reform Act could not be used to evade the national standards in the federal legislation, but the appeal court found that a court exercising jurisdiction under the provincial custody legislation would be required to apply the national standards in deciding the appellant’s parenting application.     

Consequently, the appeal was allowed and the original order of the motions judge was reinstated pending a fresh hearing pursuant to the Children’s Reform Act.    

In reviewing the litigation history of this case, it is apparent that JT’s caregivers, her only parents, albeit not by biology, continued to advocate on her behalf in the face of a presumably well-funded First Nations community and likeminded intervenors.  To remove a child from the only home she knew and send her to live in a different province with a stranger defies comprehension.   

Lawdiva aka Georgialee Lang

**This article first appeared in The Lawyer’s Daily, a publication of Lexis Nexis Canada.                                                                                                                                                                   

An Exhausting and Ruinous Parenting Case: JM v. EM

 It is sad, but true, that despite the best intentions of lawyers, judges and parenting experts, family law cases can go off the rails and careen into unexpected and destructive outcomes. J.M.v. E.M. 2022 ABCA 49 is such a case.

The case

In 2012 a German woman, J.M., came to Alberta with her 6-month-old daughter, M. In 2015 J.M. met and later married a Canadian man and had two children, born in 2016 and 2017. Unfortunately, the marriage ended in April 2019 with a physical altercation between J.M. and her mother-in-law and J.M.’s allegations that her husband was abusing M., leading to the involvement of the Child and Family Services Ministry and J.M. moving with the three children to a women’s shelter.

Later in 2019 a primary parenting order was made in favour of J.M. and the children’s father was awarded specified parenting time. By that time, M. was 8 years old and suffering from bullying and expressing suicidal ideation.

A trial was set to address parenting and child and spousal support, but the parties, each represented by counsel, agreed to a binding judicial settlement conference wherein a final order dated Feb. 5, 2020 was made, providing shared parenting and shared decision-making of all three children, with a week on/week off parenting schedule. M. was estranged from her stepfather and a unification plan was put in place with the expectation that M. would eventually spend half-time with him.

Although J.M. had no income the order provided that she would receive spousal support for only six months. The reunification therapy never commenced, and the father last saw M. in October 2019.

Regrettably, the order of February 2020 was not the end of the litigation. The parties continued to quarrel, and further allegations of child abuse were levelled by J.M. against her husband, as M. made disclosures to several mental health professionals. These allegations resulted in criminal charges against the father for sexual interference and a preliminary inquiry was held in September 2021, during which M testified. A trial date was set for March 2022.

The father was faced with additional allegations in 2020 when J.M. swore that her two younger children had been sexually and physically abused by their father and paternal grandmother. A family judge ordered an investigation of the allegations pursuant to Practice Note 5 and the father was then subject to supervised access.

Upon the completion of the investigation in December 2020 the chambers judge determined that the sexual and physical abuse allegations were “unsubstantiated in regards to parenting and supervision concerns” and ordered J.M. to pay costs to her husband. The Appeal Court noted that the chambers judge failed to specify which allegations against which children were unsubstantiated, despite the pending criminal trial. The court then ordered a Practice Note 7 Triage Intervention, a procedure used in high-conflict cases where an expert opinion as to the children’s best interests is conducted by a parenting expert who acts as a friend of the court.

Further abuse allegations were made by J.M. on Jan. 6, 2021, this time to the RCMP who referred the matter to the Caribou Child and Youth Centre, where the two younger children, now ages 4 and 3½ years old, were interviewed. However, the allegations could not be substantiated as the children were too afraid to speak.

On Jan. 21, 2021, J.M. obtained an emergency protection order against her husband, which was vacated the following day upon the husband’s application. Later that same day, with J.M. appearing, the court suspended J.M.’s parenting time with the two youngest children. Suspecting that this order would cause J.M. to flee, the father filed an ex parte application seeking orders that J.M. deliver her passport to the court and a non-removal order.

However, it was too late. J.M. left Canada and flew to Germany with M. three days after the order suspending her parenting was handed down. On Jan. 26, 2021, J.M. was found to be in contempt of the Feb. 5, 2020, parenting order which precluded travel outside of Canada without a court order and a warrant for her arrest was issued. The father was granted sole parenting and decision-making of the two youngest children and the paternal grandmother was given guardianship and decision-making with respect to M. The father’s child support obligations were rescinded and service of the father’s application and affidavits in support ofJ.M. were dispensed with and the documents were sealed.

The following day the father brought a Hague Convention application for the return of M., which resulted in her return to Canada into her paternal grandmother’s custody in May 2021 after a hearing and an appeal in Germany.

On May 18, 2021, the court ordered that the father have no contact with M. and that his parenting time with the two younger children be supervised. The three children were united and were living with their paternal grandparents on their farm. J.M. was allowed to have two supervised one-hour Zoom calls with the children each week, at her expense. A warrant for J.M.’s arrest for child abduction remained in place, as did the warrant for contempt.

The appeal

J.M. appealed the decision of the chambers judge from her home in Germany. She identified three grounds of appeal:

The chambers judge erred by dispensing with notice and service upon her of the father’s application;

The chambers judge erred by appointing the grandmother as the guardian for M.;

The chambers judge erred by granting sole parenting and decision-making to the father in respect of the two younger children.

The Appeal Court began its analysis with the off-cited observation that “self-help” in family law is not permitted unless there is immediate danger and no opportunity to apply to the court for a variation order, for the simple reason that the court has an obligation to safeguard the dignity of the courts and the forces of its orders and the obligation to safeguard the best interests of a child. However, they also noted that the mother’s actions must be viewed through a holistic consideration of the circumstances that confronted her.

The Appeal Court allowed the appeal, reaching “three inescapable conclusions” after reviewing the evidentiary record:

a) That a significant power imbalance existed and continues to exist between the mother, her husband and her husband’s family;

b) That the mother’s abuse allegations had yet to be adjudicated by the court; and

c) That the mother had been deprived of procedural fairness at various times during the litigation, leading to an untenable status quo. These findings led them to suggest that the mother’s departure from Canada was borne out of her desperation. The power imbalance included the mother’s lack of legal status in Canada and her poverty after separation, living in shelters and later in a tent.

The lower court’s Feb. 5, 2020, order included a term that the father would sponsor J.M. and M. for permanent residence in Canada, but he failed to do so. At about the time she left Canada with M. she wrote to the German embassy pleading for assistance, painting a harrowing picture of a marriage characterized by mental, emotional and physical abuse. The court noted that the recent amendments to the Divorce Act in respect of family violence underscore society’s increased understanding of and condemnation of domestic violence and its deleterious effects on spouses and children.

The Appeal Court then queried whether the Practice Note 5 investigation was conducted by an experienced child assessor, given the expert’s inability to obtain any information from the children, who apparently broke down in hysterics and shook in fear when in the presence of RCMP officers. This, despite medical evidence that one of the children showed physical signs of sexual assault with a ruptured hymen, a fact that was brought to the attention of the chambers judge.

The Appeal Court stated that the lower court’s finding that no abuse could be substantiated was a determination made in an “evidentiary vacuum.” With respect to procedural unfairness, the Appeal Court found that the chambers judge apparently accepted the father’s submissions that J.M.’s application for a protection order, after she made additional allegations of abuse, was made in bad faith, as the abuse had already been found by the court to be unsubstantiated. It was then that the mother’s parenting time was suspended, an order that was considered inexplicable and extraordinary by the Appeal Court, particularly because no such order was sought by the father.

They stated:

“A fundamental tenet of our adversarial system is that parties are entitled to know the case they must meet and be provided with an opportunity to address evidence prejudicial to their case and marshal evidence to prove their position. Charkaoui, Re, 2007 SCC 9 at para. 53;Ruby v. Canada 2002 SCC 75 at para. 40 …”

They also referred to Van de Perre v. Edwards 2001 SCC 60 at para. 47 where the court held that,“[p]arens patriae jurisdiction does not justify the avoidance of the rules of civil procedure.”

Further, the Appeal Court criticized the lower court’s decision to entrench upon the open court principle by ordering that the father’s court materials not be provided to J.M. and that they be sealed. Finally, the Appeal Court remarked that all of these unusual remedies were granted to a parent who had no contact with M. for 15 months, was facing a criminal charge for sexual interference, and whose parenting time with his two younger daughters was supervised.

The decision

The Appeal Court admitted there were no easy answers and no quick solutions, but the priority was to arrange for J.M. to be reunited with her children in Canada. The court facilitated this by ordering the husband to pay $5,000 to an immigration lawyer to assist J.M. to obtain a Temporary Residence Permit.

They also vacated the order for supervised Zoom parenting time which was costing J.M. $750 amonth, money better spent on her travel expenses to Canada. The orders suspending J.M.’s parenting time were vacated, the father’s sole parenting and decision-making was vacated; the warrant for J.M.’s arrest was vacated and her contempt declared to be purged; the child support order against her was vacated; and the chambers judge was no longer seized of the case. An expedited trial was to be arranged.

A report by the children’s amicus revealed that M. had achieved a measure of stability after her return to Canada and the parties agreed that in the interim her grandmother would retain guardianship on a without prejudice basis, subject to variation following the father’s criminal trial.

Conclusion

This exhausting and ruinous journey for these parents and children leads inexorably to the realization that there has to be a better way to deal with those high-conflict, trauma-inducing cases that are far too prevalent in our family justice system. This case unfolded in a more remote northern community in Alberta where accessible family law services desperately need improvement. Delays in adjudicating allegations of family violence and child abuse stand in the way of resolution and healing that exacerbates clashes between parents. The health of our families is the cornerstone on which society rests. There is an urgent need for a new vision to ensure that policies and programs to support families are our highest priority.

**This article first appeared in The Lawyer’s Daily’s a publication of Lexis Nexis, Canada.

Lawdiva aka Georgialee Lang

BC’s Leading Case on Parental Alienation

The leading case on parental alienation remains the case of Williamson v. Williamson 2016 BCCA 87 and has been referred to in over 100 cases by courts in BC,  Ontario, Alberta, and Yukon. 

The appeal case arose from a chambers decision that ordered four children, ages 18, 16, 14, and 12 to attend an inpatient family counselling service pioneered by Dr. Kathleen Reay in Kelowna. The court accepted a report authored by family counsellor Bob Finlay, who was appointed as a therapist for the family, and had identified parental alienation by the children’s father. 

The chambers judge said “there is absolutely no doubt that there is serious parental alienation here and it has been encouraged by one of both of the parents. I am not making any decisions insofar as who is right or wrong in any way…you have a 16-year-old who has not seen his mom for roughly 4 years and a daughter who has not seen her mom since September of last year, and the other children have not been seeing their father at all. The family is complete dysfunctional right now…”

The appeal court noted that it was unusual that the chambers judge did not identify which parent was exhibiting alienating behavior and that the judge made clear he had not read all the material before him and that his review was “cursory”. 

This case was even more interesting because the mother had brought the same application six months earlier, only for it to be dismissed. At that time the court determined that Mr. Finlay’s opinion was “untested” by cross-examination and further,  that the court had not invited Mr. Finlay to change his role from therapist to expert assessor, rather Dr. Elterman had been appointed to update a section 211 report for the court. 

The appeal court allowed the appeal and directed that there be an expedited trial,  on the basis that the chambers judge had failed to determine if there had been a material change in circumstances, which was required if  the court were to consider making an order for intensive inpatient therapy, which had earlier been dismissed.  

But it is the Court of Appeal’s commentary on parental alienation that has attracted attention to this case. The court first noted that parental alienation is a controversial area in family law, but its controversy was not before them. They said that other courts have determined that alienation can occur as an unfortunate side-effect of the breakdown of a relationship, but it also occurs because of deliberate actions, both direct and indirect on the part of a parent.  They reminded us that alienation must be distinguished from estrangement, and that estrangement occurs when a child understandably refuses contact with a parent for a logical and rational reason. 

They commented on the use of expert evidence to support allegations of alienation, noting that because of the seriousness of the allegation, courts must be cautious in admitting expert evidence. The chambers judge had accepted the evidence of alienation proferred by Bob Finlay without considering his qualifications, or the necessity of his report given that Dr. Elterman had been the court appointed expert.  They also noted that the inpatient program ordered by the chambers judge was a fairly recent program that had not been independently peer reviewed. Several other judges had questioned the qualifications of Dr. Reay to run such a program including Luo v. Le 2016 ONSC 202 and DSW v. DAW 2014 BCSC 514.

Lawdiva aka Georgialee Lang

Ground-Breaking Covid Decision in Family Law

What can I say about Mr. Justice Pazaratz that has not already been said by others?  There is no doubt that he “can be counted on to tell it like it is”; is “thoughtful and child-focused”; and is “known for his plain language, storytelling, humour, and biting commentary”. 

All of this is true, but in JN v. CG  2022 ONSC 1198 he has outdone himself.

While judges across Canada have parroted the accepted catechism about covid vaccinations for children, Justice Pazaratz has provided the first in-depth analysis and may be the first judge in Canada to deny a parent’s application to vaccinate young children. 

He begins his Reasons asking: “Should judges sit back as the concept of “Judicial Notice” gets highjacked from a rule of evidence to a substitute for evidence? And is “misinformation” even a real word? Or has it become a crass, self-serving tool to pre-empt judicial scrutiny and discredit your opponent? …a childish—but sinister—way of saying “You’re so wrong, I don’t even have to explain why you’re wrong.”  

The facts of the case reveal that a father applied for an order that his two children, LEG age 12 and MDG age 10, receive covid vaccinations, while their mother opposed this. The parties, who separated after seven years of marriage, have three children: a son, age 14 who lives with his father and a son and daughter, ages 12 and 10, who live with their mother. The parties agreed in Minutes of Settlement that each party would have sole-decision making authority for the child(ren) in their care and control, however, their agreement also stated that: “The issue of LEG and MDG receiving a covid vaccine shall remain a live issue and shall be determined at a later date. The child CBG can determine whether or not he wants to be vaccinated now”. 

The mother’s evidence focused entirely on medical and scientific evidence while the father focused on labelling and discrediting his children’s mother in a dismissive attempt to argue that her views were not worthy of consideration. Why? Because she had a political affiliation with the People’s Party of Canada led by Maxine Bernier; had perpetuated covid-related conspiracy theories and vaccine hesitancy on social media; and failed to wear a mask at a large rally. 

Puzzled by this evidence, Justice Pazaratz queries how any of these allegations and many similar ones are relevant and how far is one to take “guilt by association”? He remarks that “it is of little consequence that an individual litigant chooses to advance such dubious and offensive arguments. Even though the father may not admit this, this is still a free country and people can say what they want…including him. But there’s a bigger problem here. An uglier problem.”

Justice Pazaratz then identifies the intolerance, vilification, and dismissive character assassination in family court. He presumes that he is seeing more of it because it is “rampant outside the courtroom” and appears to be socially acceptable to denounce, punish and banish anyone who doesn’t agree with you. An example? A recent case where a mother sought to terminate a father’s equal parenting time with their child because he was “promoting anti-government beliefs”. Judge Pazaratz declares: “…in Communist China that request would likely have been granted”.  But thankfully, not in Canada, say I. 

Of course, what it all boils down to is the best interests of the children, as it must, and the children’s views took centre-stage in the analysis. A Views of the Child Report indicated that neither child wished to be vaccinated, and Justice Pazaratz agreed that their views were not determinative, but also could not be completely ignored, relying on Article 12 of the United Nations Convention on the Rights of the Child and the list of factors to be considered as set out in Decaen v. Decaen 2013 ONCA 218.

The Court reviewed the children’s histories of regular immunizations, and their consistent reasons for rejecting a covid vaccination, which did not appear to be frivolous, superficial, or poorly thought out. 

Finally, the Court considered information obtained from the internet including a “Position Statement” from the Canadian Paediatric Society;  a document from the Government of Canada entitled “Vaccines for Children: Deciding to Vaccinate”; and an article from the Canada Communicable Disease Report entitled “COVID-19 Cases and Hospitalizations Surge Among Children”, all proffered by the father. 

The mother’s material included an article by Dr. Robert Malone, the inventor of the mRNA vaccine; a Pfizer fact sheet; a peer-reviewed article entitled “Immunization with SARS Coronavirus Vaccines Lead to Pulmonary Immunopathology on Challenge with the SARS virus”; and an article from the Centers for Disease Control and Prevention (CDC) entitled “Clinical Considerations: Myocarditis and Pericarditis after Receipt of mRNA Covid-19 Vaccines among Adolescents and Young Adults”.

Justice Pazaratz noted that information obtained from the internet can be admissible if it is accompanied by indicia of reliability, including whether it comes from an official website from a well-known organization, whether the information is capable of being verified and whether the source is disclosed so that the objectivity of the person or organization can be assessed. 

However, he also remarked that in almost all cases in Canada where COVID vaccinations have been ordered the court has made a finding that on the face of it, the internet materials presented by the objecting parent have been grossly deficient and at times, dubious. “The lack of an equally credible counter-point to government recommendations may have well been determinative in those earlier cases”.

Notably, the Court recited the warning from Pfizer, a company that makes the vaccine, as follows:

“There is a remote chance that the Pfizer vaccine could cause severe allergic reaction… Signs of an allergic reaction include difficulty breathing, swelling of the face and throat, a fast heartbeat, a bad rash, dizziness and weakness. Inflammation of the heart have occurred in some people who have received the Pfizer vaccine….”

Justice Pazaratz also quotes from Dr. Robert Malone who warns that “therapeutic approaches that are still in the research phase are being imposed on an ill-informed public” and that  “public health leadership has stepped over the line and is now violating the bedrock principles which form the foundation upon which the ethics of clinical research are built.”

With respect to judicial notice, the Court reviewed the analysis of the safety and efficacy of the vaccine as promoted by the federal government and illustrated in other covid/child vaccination cases in Canada, where judges routinely  “judicially noticed”  the evidence, endorsing the government views.  Judge Pazaratz asked: “After considering all of the evidence– or often the lack of evidence—can the court just fill in the blanks and take judicial notice of the fact that all children should get vaccinated?… Because if “all judges just “know” that children should be vaccinated, then we should clearly say that that’s what we’re doing”.

We are reminded that judicial notice is intended to avoid unnecessary litigation over facts that are clearly uncontroversial or beyond reasonable dispute, however, Justice Pazaratz points out other areas of life and the law where the government was wrong, including the Motherrisk expert evidence that turned out to be disastrous for families; the residential school system; the sterilization of Eskimo women; and the thalidomide crisis of the 1950’s. 

In closing Justice Pazaratz comments that both parents are excellent; the children’s mother has the responsibility to make decisions for the children in her care; and that she has consistently made informed and child-focused decisions. He says she is not a bad parent, simply by virtue of asking questions of the government.  The father’s application to vaccinate the children is dismissed, with a postscript:

“It’s irrelevant to my decision and it’s none of anyone’s business. But I am fully vaccinated. My choice. I mention this because I am acutely aware of how polarized the world has become”.

Me too, I say.

Lawdiva aka Georgialee Lang

***This article was originally published by The Lawyers Daily, a publication of Lexis Nexis Canada.

Standard of Review Remains Elusive in Family Law Arbitrations

Family law arbitration continues to find acceptance in British Columbia, although its welcome has been a slow, albeit steady trajectory. One of the benefits of arbitration is its private nature, and lawyers and arbitrators only hear of this alternative dispute resolution process when a party to an arbitration appeals the award. JEA v. VJA 2022 BCSC 171 is one of those cases.

The parties, who began their relationship in 2008 and separated in 2014, had one child. They initially engaged in mediation which was unsuccessful, and in 2018 agreed to adjourn their scheduled trial in favour of a med/arb process. Three mediation sessions were held in the summer of 2018 where the parties resolved some parenting issues and child and spousal support. The remaining issues included how disagreements on parenting would be resolved; the parenting schedule; the timing of a Views of the Child report; and various issues relating to the valuation of family property and excluded property. 

The parties agreed with the arbitrator’s suggestion that he conduct an evaluative med/arb; that the arbitrator would choose between the parties’ last final offers; and he would provide summary reasons. Both parties were represented until the last step when final offers were presented, and at that point the husband was self-represented. 

Shortly after the final offers were submitted, the arbitrator granted the wife’s application to reopen the arbitration to amend her final offer to reflect new information about remedial work required on the family property that impacted its value. Both parties amended their final offers several months after the mediation concluded and the arbitrator issued his award with summary reasons in December 2018, preferring the wife’s last final offer. 

In February 2019 the husband filed his Petition appealing the arbitrator’s decision and Mr. Justice Myers began the hearing on October 15, 2019 but was unable to conclude it before the court day ended, however, not before ordering him to pay costs of $2,000 to his spouse prior to rescheduling his Petition. He was also ordered to provide within 14 days “full cogent argument as to what he is challenging in his Petition to the court”.

The husband provided his argument in November 2019 but advised in January 2020 that he would not pay the costs order. The proceeding stalled until March 2021 when the husband reset the hearing by requisition and also paid the costs order of $2,000.

The primary issue raised by the petitioner related to the family home and farm, the value of the petitioner’s excluded property, the value of his geoduck license, and the increase in value of the respondent’s property. The arbitrator concluded that the family farm was family property to be shared as tenants in common. The petitioner was permitted to buy out his wife’s interest for $320,000, failing which the property would be sold.

The Petition was then heard by Mr. Justice Steeves on July 22 and 23, 2021, and the petitioner remained self-represented. 

Steeves J. first considered the statutory framework noting that since the arbitration was commenced in 2018 the Arbitration Act applied rather than the  arbitration sections of the Family Law Act. Section 31 (3.1) of the Arbitration Act permits a party to appeal an arbitration award on “any question of law, or any question of mixed law and fact. 

The standard of review was considered a settled question in British Columbia based on McMillan v. MacMillan 2015 BCSC 2177, however, the law is now in flux, or as described by the Court of Appeal in family law case Nolin v. Ramirez 2020 BCCA 274 is “an issue currently percolating in courts across the country” in light of the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65. The issue was further complicated by the Supreme Court of Canada’s decision in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District 2021 SCC 7, where the court declined to opine on this “obviously important question” as it was not necessary to the outcome of the appeal. 

The most recent judicial opinion in British Columbia on the standard of review comes from Madam Justice Griffin in Lululemon Athletica Canada v. Industrial Color Productions Inc. 2021 BCCA 108,  who noted that the correct standard of review from an arbitrator’s decision is “unsettled at the appellate level, post Vavilov and post-Wastech”.

Justice Steeves agreed with the approach in Nolin, Wastech and Lululemon, stating that generally, issues of law that are not necessary to a resolution of an appeal should not be decided. He said:

“It is particularly important to abide by this principle when submissions on a complex legal issue are relatively brief, occurring over only a small portion of a two-day petition where one party was self-represented. Further, this approach is consistent with that the British Columbia Court of Appeal adopted in Nolin (at para. 39)”

Ultimately, Mr. Justice Steeves decided that the Petition must be dismissed whether the standard of review was reasonableness, palpable and overriding error, or correctness. 

The petitioner’s complaints centred on the process employed by the arbitrator including the last final offer arbitration style and the summary reasons. Judge Steeves noted that the last final offer mode of arbitration has been accepted as “fair” by courts in Canada in McLaren v. Casey 2016 BCSC 169 and Kroupis-Yanovski v. Yanovski 2012 ONSC 5312. With respect to the summary reasons, the parties’ med/arb agreement prescribed this form of reasons and the parties signed the med/arb agreement with their respective counsels’ advice.

The court also concluded that the arbitrator committed no errors in law and while the reasons did not refer to any authorities the nature of summary reasons precluded that.

Finally, the court reiterated its view that it need not decide the “complex issue of the standard of review to be applied to the arbitration award” because, as in other recent decisions, on any standard of review, the Petition failed. 

Whether the standard of review will be decided by an appellate court in Canada remains to be seen, as presently the only appellate court who has accepted the challenge is the Northwest Territories Court of Appeal who decided that Vavilov applies to statutory appeals of commercial arbitration decisions. (Northland Utilities Limited v. Hay River 2021 NWTCA 1.) Currently, the judges of the Northwest Territories Court of Appeal are appellate judges from the Yukon, NW Territories, Nunavut and Alberta. 

***This article was first published by The Lawyers Daily, a publication of Lexis Nexis Canada 

Can a Child Custody Expert Perform Dual Roles: Assessor and Mediator?

Can a child custody expert retained to provide an assessment of the children and their parents, modify his or her role during an arbitration where he is the expert, and put on the additional hat of mediator? That is the question the Ontario Superior Court considered in Spadacini-Kelava v. Kelava 2020 ONSC 5561.

The parties, who married in 2000, had two children, D. born in 2008 and C. born in 2010. In 2014 the couple decided that their severely autistic daughter, C.,  would benefit greatly from a specialized program available in Indiana. The wife and D. and C. relocated to Indiana on a time limited visa, while the husband remained in Oakville, Ontario visiting his wife and children frequently. Unfortunately, the marriage broke down in May of 2015 and the parties separated, with the  husband remaining in the family home in Oakville and the wife remaining in Indiana with the two children. Ms. Kelava initiated family law proceedings in Ontario and refused to allow the children to see their father for three-months post-separation. Her anger was related to revelations that her husband had engaged in extra-marital activities in her absence. 

The wife’s pleadings included her request for an order that she be permitted to remain in Indiana permanently with the children. In January 2016 the court referred the parenting and other issues to arbitration and ordered that psychologist Dr. Irwin Butkowsky conduct a custody assessment. 

During the course of his assessment the parties requested that he assist their very experienced arbitrator to attempt to mediate a solution to their parenting issues. Dr. Butkowsky reluctantly agreed to engage in the process requested by the parties. His consent was predicated on the parties’ explicit agreement that if the mediation process failed, neither party would object to him continuing in his role of assessor and neither would raise it as an issue in any other proceeding. 

The mediation was not successful and Dr. Butkowsky completed a 90-page report, which was admitted into evidence before the arbitrator. The arbitrator relied heavily on the doctor’s interviews of the parties and the children and his clinical observations,  but did not allow the expert to usurp his role, by paying little heed to Dr. Butkowsky’s  recommendations. 

The arbitrator rendered his decision, ordering that the wife and two children return to Ontario based on a specific timeline to allow D. to complete his school year.  Upon their return the mother would have primary residence and the majority of parenting time. If the parties failed to agree on a matter regarding the children, she would have the final say. 

The arbitrator found that D. was severely distressed at being away from his father, friends, and other family in Oakville, suffered from depression and anxiety, and had threatened suicide, leading the arbitrator to conclude that his best interests would be served by a return to Canada.  The arbitrator also held that an autism program equivalent to the high-level intensive Indiana program was available in Toronto for C.  He emphasized the documentary evidence that proved that Ms. Kelava’s move to Indiana was never intended to be permanent. 

Both parties appealed the arbitrator’s award, with Ms. Kelava citing the dual role played by Dr. Butkowsky as one of her grounds for appeal, while Mr. Kelava objected to his marginalized parenting position once the family relocated back to Ontario. 

The court indicated that the standard of review of an appeal from an arbitrator mirrored the deferential standard required in an appeal from a judge, citing Rosenberg v. Yanofsky 2019 ONSC 6886 and O’Connell v. Awada 2019 ONSC 273:

“The Court should not interfere with an arbitrator’s  award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence, or misapprehended the evidence.”

The court reviewed Ms. Kelava’s submission that the arbitrator erred in law by failing to recognize the procedural and substantive flaws in Dr. Butkowsky’s report, according it undue weight.  Her argument centered on the dual roles adopted by the expert, his knowledge of the parties’ settlement positions, and the delay inherent in  resorting to mediation prior to the arbitration. At the hearing before the court Dr. Butkowsky admitted that the process “may have impacted the reliability and validity of the findings” and he questioned whether he would engage in such a process in the future. 

What Ms. Kelava failed to refer to was her specific agreement that Dr. Butkowsky adopt the roles of mediator and expert assessor, which required her undertaking not to raise this in a future proceeding, which she acceded to. Importantly, the court observed that there was no request by her counsel that Dr. Butkowsky discontinue as expert assessor after the mediation broke down, and no submissions at the arbitration hearing that his report be deemed inadmissible, although her counsel did argue that it should be afforded minimal weight. 

In dismissing her appeal, the court noted that Ms. Kelava was unable to cite any authorities that would point to any impropriety in Dr. Butkowsky accepting the dual roles. The court then referred to an Ontario Court of Appeal case where Dr. Butkowsky also adopted dual roles and his evidence was preferred to the evidence of an expert who critiqued his report, albeit his dual role was not criticized by opposing counsel or the court. M. v. F. 2015 ONCA 277. 

The attraction of using a child custody expert to work with the parties to achieve consensus is readily apparent. Typically, both parties appreciate the expertise and special skills that such an expert brings to the task. In a recent case, this author, with the consent of opposing counsel, invited the parties’ expert, who had prepared a report, to attend at a judicial settlement conference, to assist the court and the parties to agree to a parenting plan in a situation where their three-year old child travelled between father’s residence in British Columbia and mother’s home in Saskatchewan, an engagement and settlement conference that resulted in a consent order. 

The conflict that Ms. Kelava alleged, that the expert was aware of each parties’ position by virtue of the mediation role, is similar to the process involved in a med/arb, where the decision-maker learns the intricacies of each parties’ bottom line, but is expected to excise that knowledge in his or her role as arbitrator and does so effectively. 

Lawdiva aka Georgialee Lang

** This article was first published by The Lawyers Daily, a publication of Lexis Nexis Canada.