Domestic Violence - New Post at Nautil.us

Nautilus is a new science magazine with a different focus each issue.  Their latest focus is "Home,"  and you'll find great articles on a wide variety of topics related to homes.  You can also find my contribution: Not so Sweet Home: The Persistence of Domestic Violence.

I’m in Mediation. Why do I need a Lawyer?

The Ontario Association of Family Mediators “Code of Professional Conduct” states that mediators must inform clients of the advisability of obtaining independent legal advice, both from the outset of the mediation and prior to signing any mediated agreement. Indeed, many mediators will not accept as clients people who refuse to obtain independent legal advice. Sometimes people who are working with a mediator are dismayed to find this out. “We want to stay out of court!” they protest. “Why do we need lawyers?”

The short answer: Your goal is not just an agreement. Your goal is a durable agreement, one that neither party will be motivated to challenge in the future. A durable agreement will save you time and money in the long run. It will provide stability for everyone involved and allow both parties to get on with their lives.

There are two main reasons why consulting a lawyer is important for crafting a durable agreement. First, each party needs a lawyer to certify their financial disclosure. If it turns out that one of the parties has (whether by mistake or on purpose) misrepresented his or her financial situation, any agreement reached on the basis of the misrepresentation may not be durable. The other party would have a reason to challenge the agreement in court.

Second, both parties need independent legal advice. This means that each party needs to know their rights under the law, and to what extent (if any) the mediated agreement deviates from these legal rights. For example, if one of the parties agrees to forgo spousal support, she needs to know what her legal entitlements are so that she can make an informed decision. If she makes a decision without having all of the relevant information, then any agreement she signs may not be durable. She would have a reason to challenge the agreement in court. Now, some people, for all kinds of reason, decide to accept an agreement that does not reflect their legal entitlements. Some agree to settlements that provide less than their legal entitlement. Some agree to settlements that are more generous to ex-partners than is strictly legally required. Many different kinds of agreements may be fine, as long as everyone is fully informed about their rights and obligations under the law.

Independent legal advice means that each party needs a separate lawyer. By definition, one lawyer cannot offer independent advice to two parties in the same dispute. It is a good idea to consult with a lawyer early on in the mediation process, and be informed about your rights and obligations as you proceed. This is likely to save you time and money in the long run. If you’ve developed an agreement on the basis of misinformation or misunderstanding, a lawyer may advise you to start over.

Finally, be sure to engage a lawyer who has expertise in family law. Don’t hire your cousin the corporate lawyer or the really likeable real estate lawyer who helped you buy your house. Family law is complicated and you want to make sure that whomever you work with is well-informed. If you’re determined to stay out of court, make sure your lawyer knows this and respects your wishes. (And to find a lawyer who is also determined to stay out of court, consider working with a collaborative lawyer.)

Think Before You Type

Tens of thousands of people have now read a series of emails sent by Carolyn Bourne (a champion flower-breeder, living in Devon, U.K,) to Heidi Withers, her stepson’s fiancée, after a weekend visit. Ms Withers was apparently so shocked by the messages – which accuse her of being rude, vulgar, and committing apparently unforgivable sins such as sleeping in late and taking a second helping before being invited to do so – that she forwarded them to friends. These friends forwarded them to others, and likely before the participants knew what was happening, the conflict and the emails were being discussed in the Telegraph, the New York Times, and the Huffington Post, among other media outlets.

While no one could have predicted that email messages within an obscure British family would end up as a subject of international attention, it is worth repeating that there is no such thing as a reliably “private” email message. You simply have no way of knowing whom the recipient of your message might decide to share it with. This is just a fact of modern life. If you hold views that you don’t wish to be known generally, or have done things that you wish to remain private, don’t write about them in email.

The rumpus over Ms Bourne’s emails made me think, not so much about the perils of the internet, as about some more general problems with communication. Before transmitting any kind of message – whether on twitter, via a facebook posting, email, or handwritten note – it is essential to ask yourself what you hope to achieve by sending the message. Ms Bourne says in her email that she is writing because, “It is high time someone explained to you about good manners,” and to encourage her future daughter-in-law “for your own good” to consider enrolling in finishing school. She has adopted the classic “this is for your sake, not mine” communication strategy. But if Ms Bourne was able to be honestly self-reflective, would she really maintain that she wrote with her future daughter-in-law’s and the family’s best interests at heart? If you genuinely want to reach out and help another person, is it the best practice to confront them with a long list of their misdeeds? I suspect that Ms Bourne took a dislike to Ms Withers, was annoyed by her behaviour, and wanted to get it off her chest. And that’s OK. But she should have sought out a friend to complain to, rather than sending a message obviously intended to be hurtful.

Perhaps I’m mistaken here, and Ms Bourne really did have at heart the best interests and future happiness of her stepson and his wife. (After all, everyone deserves the benefit of the doubt.) If that was indeed the case, then next thing she needed to ask herself was, is putting all of this down in writing really the appropriate next step? One thing that email shares with old-fashioned handwritten notes is that both are monologues. The recipient has no opportunity in the moment to defend herself or explain. If you genuinely want to reach out to someone and help them, it is doubtful that a “stern talking-to,” whether delivered via email or on the finest stationery, is the ideal communication strategy.

Should Judges Interview Children?

In some jurisdictions, judges deciding child custody cases make it a point to interview the children involved. The thinking behind the practice is that children should have a forum to make their views and preferences known, especially in matters that are going to affect them profoundly. A recent article in Lawyer’s Weekly discusses a speech made by Alf Mamo, a London, Ontario family lawyer, in which he urged judges to interview children aged twelve and older in the course of deciding custody and access.

I am not convinced that judges should interview children as a matter of routine. I was very struck by the experience of Judge Harvey Brownstone, recounted in his book Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court. When he first came to the bench, Judge Brownstone interviewed children regularly to find out their views on which parent they would like to live with, and so on He stopped because in every case, the child told him something like, “I want my parents to get back together and I want things to go back to the way they were.” (By the way, I’d highly recommend Tug of War to anyone with children going through a divorce, or to anyone interesting in learning more about family law in Canada.)

The case against judges interviewing young children seems pretty clear. As anyone who has had dealings with young children can confirm, talking to them and finding out what they want is not always straightforward. It can take a lot of skill and patience to find out a child’s true wishes, and this is even when the child herself knows what she wants! Talking to children about sensitive matters is tricky, and few judges have been trained to do it. In addition, children are likely to find meeting the formally dressed judge in his or her chambers to be stressful and even scary. The child probably understands that this individual has a great deal of power over her family’s future, and may feel significant pressure to say the “right” thing. And no matter what the outcome, the child may feel guilty when one of her parents is disappointed.

The case against judges interviewing older children is less straight-forward, but I think that similar considerations apply. A recent study by the Australian Institute of Family Studies is interesting here. Researchers interviewed children aged 12 to 18 whose parents had separated after the 2006 reforms in family law. They found that while about two thirds of the teenagers wanted a say in who they lived with, fully one third did not. They simply did not want to be put in the position of choosing between their parents.

There should be a way for those children who desire it, young and old, to have a voice in decisions that will affect them. But there are more effective ways than having a judge interview them. A specially trained social worker or psychologist might be involved. Some mediators will interview children as part of working out a parenting plan. Let’s not forget the practical considerations. Judges’ time is extremely expensive, and everyone agrees that the family court system is over-loaded as it is. The same article discussing Mamo’s speech quotes Justice Jennifer Mackinnon who says that judges often have less than eight minutes “per side” of a case to read and prepare for a motion, and 15 minutes “per side” to prepare for a settlement conference. With such constraints on their time, does it really make sense to give judges yet another task?

What is a “parenting plan”?

A “parenting plan” is a document that specifies how family time will be arranged, information will be shared, and responsibilities will be met in the aftermath of the parents’ separation.

In most families, there is a more-or-less regular “division of labour” with respect to looking after the children and getting them to their extra-curricular activities. For example, Mom handles swimming lessons and Dad does hockey practice, while they take turns going to parent-teacher interviews. There is also likely to be some standard way in which important decisions regarding the children are made. Maybe the parents make most decisions together, but one or the other does the research. Maybe Dad has strong views about athletic activity, so he tends to handle those types of decisions.

When parents divorce the sharing of responsibilities continues, but often things get a bit more complicated. Likely, the children will be spending time in two different households. How exactly will that work? Finances will be affected. There may not be enough extra money for the kids to take piano lessons and also to continue with tai kwon do. Choices will have to be made. Maybe one parent has stayed home and has had most of the responsibility for getting the kids to their after-school activities. If that parent plans on going back to work different arrangements may be necessary. Ideally, parents work together, perhaps with the help of a mediator, to negotiate the details of the plan.

How detailed should the plan be? On the principle that those who want to disagree will find something to disagree about, the greater the potential for conflict between the parents, the more detailed the plan should be. Some parents will be fine with a plan that says, “Billy will spend Tuesday evening and overnight with his father” and let the details sort themselves out. Other parents will need (or will simply prefer) to have a plan that states, “Billy’s father will pick him up from school on Tuesday afternoon and take him to hockey practice. Billy will sleep over at his father’s place, and his father will return him to school on Wednesday morning.”

There are many reasons to get a parenting plan in place – even a temporary one - as soon as possible after parents separate. Having a plan cuts down on uncertainly and on stress for everyone. Most importantly, having a plan provides security and stability for children. (And as most parents will tell you, they aren’t happy if their children are unhappy.) Children need to know that someone will be there to take them to hockey practice and ballet lessons even if mom and dad aren’t living together anymore. It is important to them that both parents continue to take an interest in their schooling and follow their progress. They also need to be reassured that they won’t lose touch with extended family members who have been important in their lives so far.

Another reason to negotiate a parenting plan is that it means decisions can be made calmly, in a considered manner, rather than “on the fly.” The more the details are spelled out and agreed upon beforehand, the less potential there is for conflict later on. And protecting children from having to witness parental conflict can only be good.

Could a Family Mediator Help You?

Many people are now aware that mediators can help couples who are planning to separate or divorce. But the strong connection between “family mediation” and “divorce” is unfortunate. Mediators can do much more, and have a significant role to play in many different kinds of conflicts within families. Here is just a partial list of the sorts of situations where a mediator might help.

Discussions across generations. Even well-adjusted and loving families can have disagreements over difficult issues. A mediator can help adult siblings and their parents in coming to resolutions about the following:

• Eldercare decisions regarding residence, caretaking plans, medical treatment
• Estate planning and dispersal
• Succession planning in family businesses
• Shared use of vacation properties

Couples’ Concerns. It is regrettable that few people know about the role that mediation can play in helping couples stay together and work through their differences. Here are just a few areas where mediation can help couples improve communication and strengthen their relationships.

• Cohabitation agreements. (See my earlier posting on these.)
• Marital agreements.
• Differences in parenting styles
• Persistent disagreement and conflict – over financial decisions, life priorities, children’s education and religious upbringing, etc.

Separation and Divorce. Divorce and family breakdown are extremely stressful life events. Taking a non-adversarial, collaborative approach to resolving disputes can help reduce stress levels for everyone involved. A mediator can help with any or all of the following:

• Decisions about children’s basic living arrangements and schedule
• Decisions about holidays and vacations
• Decisions about children’s education and extra-curricular activities
• Financial issues, including child support and spousal support
• Decisions about how new partners and step-parents will fit into family life

Depending on your family and on the problem you’re facing, family mediation might be a good approach. The only way to know is to contact a mediator in your area and discuss your concern.

Grandparents, Children and Divorce

Among the current proposed changes to family law in England and Wales is a plan to grant access rights to grandparents in the case of family breakdown. (Here is an article about the proposed changes.) In Ontario, a private member’s bill (no. 33) with a similar aim is currently being reviewed by the standing committee on social policy.

Grandparents often play important roles in the lives of their grandchildren. They help out with childcare, provide a sympathetic ear, and share their life experience. There is good evidence that children benefit from having a close relationship with their grandparents. When a child’s parents have separated, the grandparents’ role is all the more crucial. A grandparent’s home can be a place of peace and stability. This is especially true if the parents are angry or upset with one another, or there is a lot of upheaval in a child’s life.

Sadly, many grandparents have reported that they have found it difficult to remain part of their grandchildren’s lives after the children’s parents split up. Paternal grandparents are especially likely to report feeling shut out. While there is support in both England and Ontario for improved legal rights for grandparents to see their grandchildren, it is easy to see that changing the current laws cannot be the whole solution. For one thing, many seniors are on restricted incomes and may not have the means to hire lawyers and have their day in court.

Why would a parent make a decision to restrict the time that their children can spend with their grandparents? A mother might feel that her former in-laws never accepted her or never liked her. She might feel that they contributed to the breakdown of her marriage. A father might fear that his ex-wife’s parents are going to put him down in front of their children. If one of the parents does not share the same religious or cultural background as his or her in-laws, that parent might be concerned that the grandparents will not respect these different cultural traditions, and this in turn might be confusing for the children.

I predict that many conflicts between parents and grandparents over the right to spend time with their grandchildren will end up in mediation. A mediator can talk to all of the parties involved and work to keep everyone focused on the best interests of the children. Children do benefit from having their grandparents in their lives, but it is also important that grandparents are respectful of both of the children’s parents. One of the greatest gifts that grandparents can give to their grandchildren is a stable and peaceful setting where they can get away from their parents’ conflicts and problems. It might not always be easy for grandparents to set aside bad feelings about one or other of their grandchildren’s parents. But refusing to do so can only make a bad situation worse.

Cohabitation Agreements

In my previous post, I mentioned a recent decision by the Supreme Court of Canada that is likely to change the way that the courts deal with support and property conflicts between unmarried partners. There’s speculation among lawyers that the decision will lead to an increase in cohabitation agreements. So I thought it would be useful to say something about them here.

A “cohabitation agreement” is a contract between unmarried partners who live together, and it can be signed before the couple move in together or after. It usually specifies things like the rights and obligations of each party during the cohabitation, and what will happen if the relationship ends. For example, who will own property acquired during the relationship? Will one partner be obliged to support the other, and for how long? Who will move out of the shared residence, and how soon after the relationship ends should that person be expected to find a new home? For a cohabitation agreement to be legally binding the parties must sign it in front of a witness (who also signs); each must make a full and frank financial disclosure; and the parties must sign voluntarily.

There are good reasons for couples to work out a cohabitation agreement before moving in together. Working together on a cohabitation agreement can give each person some idea of how the other deals with conflict, and if they are able to have together what mediators like to call “difficult conversations.” For example, many couples avoid talking about money and realize only too late that they have different values around it and different spending habits. Having an open and honest discussion about each other’s financial situation and financial goals early in the relationship can help avoid conflict and misunderstanding later on. Another good reason to have a cohabitation agreement is that, if the relationship does break down, a legally binding agreement can provide some predictability about property rights, and it can help protect against unnecessary cost and litigation.

But do you really need a cohabitation agreement? A lawyer who specializes in family law can advise you about your particular situation. Likely, the answer depends on how much property you own, and how complicated your life is. If the only discussions you and your partner need to have are over who unloads the dishwasher and who pays the extra cable charges, probably a formal agreement isn’t necessary. But if one or the other owns a home or other substantial assets, or has children, a cohabitation agreement might be a good idea. Another factor to consider is whether the shared living arrangement is meant to be temporary or long-term. If the arrangement is meant to be long-term and indeed to take the place of a marriage, then having a formal agreement is probably advisable. I should also note that, ordinarily, a cohabitation agreement remains valid if the couple marries.

If you do decide that you and your partner would benefit from having a cohabitation agreement, then do it properly. Meet with a mediator if you find it difficult to discuss money or other sensitive subjects. Most importantly, each person signing the agreement needs independent legal advice. That means that both you and your partner should go over the agreement with your own lawyer. It is better to spend the money at the outset to make sure that you have a durable agreement, than to find out later (and at much greater expense) that your agreement won’t hold up in court.

Marriage, Cohabitation, and the Law

When a couple moves in together, along with good wishes, they are likely to receive misinformed advice. Contrary to what many seem to believe, there are important legal differences between living together and being married. Just what these differences amount to depends on where the couple lives. (I will avoid using the term “common law marriage.” Not all jurisdictions recognize common law marriage, so using the term where it may not be appropriate is misleading.)

Below I’ve outlined some of the main differences between married and cohabitating couples in Ontario. The key difference is that married couples are treated as an economic unit, while cohabitating couples are not.

Primary Residence: When a married couples divorces after three years or more, both have an equal claim to live in the family home. This is regardless of whose name the property is in. Cohabitating partners do not automatically have this right.

Other Property: Unless they have previously agreed to do otherwise, married couples who divorce share the value of the property acquired during the marriage, as well as any increase in the value of the property they brought into the marriage. For example, Jim has owned a vacation cottage since before he married. If it goes up in value by $20,000 while he is married to Jane, then Jane is legally entitled to $10,000 upon divorce. If Jim and Jane were cohabitating, she would not be entitled to any increase in the value of the cottage. Similarly, cohabitating partners do not share any property that either acquires during the time of cohabitating. If Jane buys an artwork while living with Jim, she does not have to share it with him if their relationship dissolves. If they were married, Jim would be entitled to half of the value of the artwork. But note! Even if they are not married, if Jane contributes financially to the upkeep of the cottage, or Jim contributes some funds to purchase the artwork, the situation may be different.

Child Support: Children have the right to a relationship with both of their parents, and children have a right to be financially supported by their parents. This is true whether their parents are married or not. In some cases, the courts have ruled that if a cohabitating person has treated a partner’s child as his or her own, the child may be entitled to support from that partner.

Spousal Support: This is probably the trickiest area of all. Both married and cohabitating partners who break up may be entitled to support. A recent decision by the Supreme Court of Canada has set out a new framework for resolving property and support disagreements between formerly cohabitating partners. The case in question centered on a woman who moved out of the province to be with her partner and left a job to raise their children. Although the couple was not married, the court decide to treat their economic activities as a “joint family venture.” She was found to be entitled to half the increase in value of the couple’s assets, which amounted to about $1.5 million. (You can read the details of the case here.)

Inheritance: If a married person dies without a will, the surviving spouse is ordinarily entitled to part of the estate. If the couple is not married, the surviving partner does not have an automatic claim on his or her partner’s estate. If the surviving partner has helped pay for property that is in the deceased partner’s name, he or she may have to go to court to prove this before the estate can be settled.

I have taken most of this information from What You Should Know About Family Law in Ontario, a publication of the Attorney General’s Office. I am not a lawyer, and I don’t intend for this posting to be taken as legal advice! Family law is incredibly complicated. I’m told that even lawyers who work in other areas of the law find family law to be difficult. To find information relevant to your particular situation, you must consult a lawyer.

Next time: I’ll write about “cohabitation agreements” for unmarried couples.

When to hire a mediator (rather than do nothing)?

People often ask me in what circumstances they would need a mediator. Mediators are experts in conflict resolution, and mediators work in many different settings. There are mediators on the international stage, mediators in family courts, schools, workplaces, prisons, and out on the streets. But when should you hire a mediator rather than doing nothing? I think that there are two basic factors:

1. A decision needs to be made.
2. Something of value is at stake.

Let me explain: We all have conflicts with others. Many of these, thankfully, have little effect on our daily lives. We can avoid the neighbour whose early morning leaf-blower is a weekly annoyance. We can change the subject when our brother-in-law brings up politics or the economy. We can agree to disagree with the other parents in the playground when the topic of our children’s “screen time” comes up. But sometimes we have to co-ordinate and work together with others and conflict becomes unavoidable. And sometimes, despite conflict and differences of opinion, decisions have to be made. For example, will the children of divorced parents spend the weekends with their father or mother? Will they continue to attend the neighbourhood school or transfer to a private school? Where will they spend the holidays? Who will be in charge of their religious instruction?

It isn’t only divorced couples who need to make decisions together. Mediators also work with couples who plan to marry, to help them frankly discuss and then plan for the financial and “business” aspects of their relationship. They help married couples who plan to stay together, but need assistance to communicate effectively. And a whole range of potential conflicts can arise among adult siblings. When an elderly parent can no longer live independently, who will decide the best course of action? Who will take away grandpa’s car keys if his driving is putting others at risk? What is to be done if the family farm or business is no longer viable in its present form?

What all of these different situations share is that a decision needs to be made, and there is something of value at stake. The question of what counts as “something of value” is in the end a personal matter. I’ve seen families nearly torn apart over the issue of who will host Christmas dinner! While this isn’t something that I personally would seek help with, I know others for whom a couple of hours with a mediator to resolve this issue would be a sound investment in future family relations and personal happiness.

In general the cost of mediating a particular conflict can be weighed against the cost of doing nothing. Sometimes, if we’re fortunate, the cost of doing nothing is low. But the costs of inaction and indecision are sometimes very high. Failing to act can allow conflict to fester and can end up costing as much or more than taking action. And it has to be remembered that the costs of many conflicts are both financial and emotional – with the emotional costs being much harder to calculate.