Ontario Family Law Blog : Barrie Lawyer & Attorney Brian Galbraith : Simcoe County, Canada Divorce, Separation, and Collaborative Law

I just returned from an amazing conference of the IACP held in Minneapolis. It was a fantastic learning opportunity and chance to meet some of the best collaborative practitioners from around the world. I believe there were about 550 people in attendance, 48 of whom were from outside of North America.

The outgoing president is Canadian Nancy Cameron. I was so proud that we had a Canadian at the helm of this great organization and she served us well. I met Stu Webb who is the founder of the whole process when he decided that the Court process was not helping separating and divorcing parties. What a great visionary. Stu was honoured at the Saturday banquet. A video biography of him was shown which I understand from past president of IACP Ron Ouskey, will be available for purchase through IACP. I can hardly wait to show it to our practice group in Simcoe County.

There were many, many presentations and workshops - too many for me to highlight them all - but here are a few comments about some I attended.

Canadian and IACP Board Member Victoria Smith and IACP President Sherri Goren Slovin did an outstanding workshop called "Advanced Collaborative Negotiations". They gave us insight into the theory of Collaborative Practice, the nature of "interests" and tools we can use as we practice the art of collaborative negotiations.

Cat Zavis of Bellingham, Washington taught a full day workshop on Compassionate (Nonviolent) Communication. She taught us so much. I especially enjoyed learning how to express empathy by exploring with our clients how they are feeling and what unmet needs are causing such feelings. 

Daniel Shapiro from Harvard Law School and director of the Harvard Negotiation Project outlined the main principles of the book written by him and Roger Fisher called  Beyond Reason. I bought the book and am really enjoying it. They show how to use emotions in a disagreement to turn a disagreement into an opportunity for mutual growth.

The next conference will be in Washington, DC on October 28 to 31, 2010 at the Grand Hyatt Hotel.

I certainly intend to attend. Put it in your calendar too!

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Nancy Newton is the Executive Director of Rainbows. It is described on their website as "an international not-for-profit organization that fosters emotional healing among children grieving a loss from a life-altering crisis. These losses, among others, include separation, divorce, death, incarceration and foster care."

I believe Rainbows really helps kids deal with the emotional journey of their parents going through a separation or divorce. It does not replace a therapist as it is a system of peer support for the children. It's kids talking to other kids about their feelings.

Rainbows has their national head office in Barrie, Ontario.

Here is my interview with Nancy.

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Susan Piggs recently had an excellent article in the Toronto Star entitled "Divorced Dads Can't Catch a Break" . She outlines the many grievances of fathers who feel mistreated by the Ontario Court system. It's sad to read the stories of so many aggrieved fathers.

Many of these fathers believe that judges are intentionally against men and will do everything in their power to keep men paying support and keep men away from their children. I don't blame the judges: I blame the adversarial system. And I certainly feel sorry for the fathers who have suffered.

When it comes to children, judges are mandated to ensure that the best interests of the children are paramount. Judges struggle with their decisions. They truly want to do what is best for the children and generally start with the principle that it is in the best interests of the children to maintain a meaningful relationship with both parents. If they are faced with overwhelming evidence that limited access or supervised access is the best approach for the children, what would you want them to do? I would prefer they err on the side of protecting children rather than risking harm to them. No doubt, the judges get it wrong sometimes leaving fathers without access unjustifiably.

The adversarial process assumes that both parents will put forward their best case and the judge will somehow miraculously determine "the truth" and will dispense "justice" accordingly. Often parents don't intentionally lie but rather see the world from a different perspective than the other parent. The judges have to discern the truth. It isn't an easy job. Sometimes they get it wrong.

The whole adversarial process pits one parent against another. It creates an atmosphere of "winner take all" which exacerbates the conflict. Increasing the animosity between the parents often leads children to suffer. Ironically, judges are supposed to be looking after the best interests of the children yet the adversarial system itself can make things worse.

I believe that most cases can be resolved without going to court. In my experience having mediated hundreds of family law cases and helped many families resolve their situations using the Collaborative Process, I believe parents are usually able to resolve their parenting issues on their own with just a little help and advice from well meaning collaboratively-trained professionals and mediators.

In the Collaborative Team Process, parents  work with a neutral Parenting Coach who will help them craft a parenting plan that is best for their children having regard to the children's needs, the research on the developmental needs of children and the ability of each parent to meet those needs. The parents are empowered to problem-solve in the Collaborative Process instead of being encouraged to fight as is the case in the court system.

I have met many men who blame judges for their plight. Maybe some of them have legitimate grievances but having appeared before many judges over the years, I believe most are well-meaning men and women who are just doing the best job possible given the restrictions of the adversarial process.  Frankly, I don't believe it's the judges' fault... it's just that the adversarial system is not the best way of resolving parenting issues.  

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Supervised access means that  access to the children can only occur in the presence of someone else. The purpose is to ensure that the children will be safe.

There are supervised access centers run by the government that will provide supervised access at their facilities in some cities including Barrie. Often the supervisor is a family member or friend instead of the government so as to avoid the costs and to be able to have the supervision on site.

Supervised access is unusual. The Court has to feel that the children are at risk of harm if access is not supervised. For example, if the access parent has been abusive of children in the past or has attempted to alienate the children from the other spouse, supervised access may be ordered.

Sometimes there simply needs to be supervised exchanges of the children to ensure the parents are not hostile toward each other in the presence of the children. Instead of going to a supervised access center, some parents will agree to exchange the children at a public location such as the local Tim Horton's, so as to minimize the likelihood of a nasty exchange. 

In a recent case called Smith v. Morrison [2009} O.J. No 3529, the court ordered supervised access to the mother because she had a drug addiction and suffered from depression. A lot of people suffer from depression but apparently this mother was not actively seeking treatment for it. There were other facts too working against her. In the end, the court felt that the children were at risk of being harmed if left in the mother's care without supervision. Normally supervised access is imposed on a temporary basis but, as in this case, it can be made a permanent order.

Supervised access is always an option to be considered in high conflict situations.

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Damages for pain and suffering were awarded in  a recent case called McLean v. Danicic and McDermott. Yes "pain and suffering". She was awarded $15,000.00.

Do you know any divorce or separation that did not involve a lot of pain and suffering? Does that mean everyone will be able to sue for damages?

The simple answer is "no". It will be the rare case.

The judge succinctly described the test used to determine if damages are to be awarded:

The tort of intentional infliction of mental suffering involves the following three elements (i) flagrant or outrageous conduct; (ii) calculated to produce harm; and (3) resulting in a visible and provable illness

In this case, the common law wife, Traci McLean, successfully sued her former partner Darko Danicic as a result of his behaviour toward her. The judge found that he sent her threatening and frightening letters and packages intended to intimidate her. Ms McLean apparently suffered much distress and suffering resulting in the need for medical attention for acute anxiety. Accordingly, all three elements of the test were met and she was deserving of damages.

The judge quoted another judge to indicate the purpose of the award:

This award is intended to “indicate society’s outrage at this conduct and to compensate the wife for the loss she has suffered,” to use the words of Métivier J.

In my experience, everyone who goes through a separation experiences pain and suffering to some degree. Whether you are the one leaving the relationship or the one being told it is over, it still hurts.

We strongly encourage you  to work with a Divorce Coach to deal with the inherently emotional journey of your separation and divorce.

The difference in this case is that the judge said that Ms McLean suffered as a result of the "flagrant and outrageous behaviour" of her partner which was intended to cause her harm. Furthermore, she suffered a visible and proven illness (acute anxiety) as a result of his behaviour.

So, all three elements of the test have to be met before you will be able to successfully sue your ex for his or her behaviour. Run-of- the-mill acts that cause pain won't suffice to allow you to sue your spouse.

Instead, you will just have to continue to do what most people do. Complain to your friends and family, work with your divorce coach.... and suck it up buttercup.

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