BarTalk October 2021 |

OCTOBER 2021 | bartalkonline.org

Family Law

INDIGENOUS ALIENATION | MARRIAGE-LIKE RELATIONSHIP | WHO GETS THE DOG?

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Family Law Features

OCTOBER 2021 Volume 33 | Number 5

Columns

Pandemic Practice Points

From the President

Chantal M. Cattermole

Clare Jennings

Executive Director

Who Gets the Dog or Cat Upon Separation?

Rebeka Breder

The Elusory Nature of the “Marriage-Like Relationship”

Leneigh M. Bosdet

Embryos and Separation

Kiran Kang

United Family Courts

Judith A. Janzen

Profiting from a More Diverse, Inclusive Society

Building the Family Law Lawyer

Kerry L. Simmons, QC

Indigenous Matters

Indigenous Alienation

Shawn J. Bobb

Indigenous Matters

Indigenous Children Deserve More Than Pan-Indigenous Periodic Exposure to Culture

Frances Rosner Practice Talk

Mediation and Legal Aid BC

Patricia Blair

Examining the Facts

David J. Bilinsky

Nothing Official

The Complexity of Gender Identity Under the Family Law Act 19

Jessie Ramsay

Order Taxonomy in Supreme Court

Brandon Hastings

Collaborative Law for Family Well-Being

Suzanne Williams

From the Branch 9

Advocacy in Action

2021-2022 CBABC Board of Directors

Professional Development

SectionTalk

From the Community

COVID-19: Horse Dewormers and Other Nonsense

Tony Wilson, QC

Online Bonus Content

bartalkonline.org

Brandon D. Hastings, Committee Chair Editorial Committee Tonie Beharrell Baljinder Girn

Eryn Jackson Isabel Jackson

Greg Palm Lisa Picotte-Li

Crystal Tomusiak Sean Vanderfluit

Carolyn Lefebvre Sanjit Purewal

Jo-Anne Stark Alexandra Suchy

Deborah Carfrae, BarTalk Editor Staff Contributors Alyssa Brownsmith Michaela David

Courthouse Libraries BC

Keeping Up with Change

CLEBC

New Features to CLEBC Online Books

The Law Foundation of BC

Fort St. John Women’s Resource Society

BCLI/CCEL

CBABC supports more than 7,200 members in British Columbia. We connect our members to the people, knowledge, and skills they need to successfully practice.

The Work of the Canadian Centre for Elder Law

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FROM THE PRESIDENT CLARE JENNINGS

Profiting from a More Diverse, Inclusive Society

am not a person who ever thought that I would end up as a lawyer, let alone as President of CBABC. It’s not that I thought being a lawyer was out of reach for me, per se, it’s just that the thought of being a lawyer never crossed my mind. I didn’t personally know any lawyers growing up; the only lawyers I ever knew were the family lawyers involved in my parents’ and step-parents’ divorces. As I think most family law lawyers will attest, that’s not the kind of introduction to law that makes most children think about it as a fabulous career.

When I did start thinking about law school, as an adult looking for a career choice where I could be of more direct service to my community, I didn’t receive any messages telling me I couldn’t. As a cis-gendered, non-disabled, neurotypical white woman living in Canada, I could look around and see plenty of signs that I would be welcome in law school and be able to practice the kind of public interest law that interested me. I was privileged, though I didn’t recognise it at the time. Not everyone is so privileged, and we know that bears out in membership in our profession. The Law Society of BC demographics show that in 2019, just 16.15% of members identified as a visible minority, 3.52% as LGBTQ2SI+, 2.71% as Indigenous, and 2.16% as persons with disabilities. It’s unclear how many of those categories might overlap, but even if there is no overlap, we know that these represent lower numbers than we would expect based on the population of BC. According to Statistics Canada, in 2016 — the most recent year for which we have statistics — 4 BARTALK / OCTOBER 2021

30.3% of the BC population identified as visible minority, and 5.9% as Indigenous. In 2012, 14.8% of the BC population identified as having one or more disabilities, and in 2018, approximately 4% of the Canadian population identified as LGBTQ2SI+. What these numbers show, besides a lack of consistent, quality statistics, is that we are still failing to meet our goal of a diverse, inclusive, vibrant legal profession. So how do we change things? How do we all make sure the legal profession is one where anyone in my old shoes can look at it and see it as a place where they fit, where they’re welcome, where they belong? The good thing is, we already know answers to these questions. We know that representation is important; if people see themselves reflected in people who are already lawyers or judges, they can better imagine themselves in that role. We know that building a pipeline is important; if we teach kids before they graduate from high school that they can become lawyers and would be welcome in the profession, they are more likely to pursue law as a career. We also know that fostering inclusivity is important; if all of us feel like we are welcome and have agency and options in our careers, we’re more likely to stay in the practice and contribute to making the legal profession and the justice system more equitable and accessible. So like I said, we know some basic answers. What we all need to do is look at our own practices and our own lives and ask ourselves if we

contribute to equality and diversity, and if there is more we can do. As the late great Justice Ruth Bader Ginsburg said, “We will all profit from a more diverse, inclusive society, understanding, accommodating, even celebrating our differences, while pulling together for the common good.” At CBABC, we believe in equality, diversity, and inclusiveness in the legal profession and the justice system, and we are committed to the process of reconciliation with Indigenous peoples in Canada. If you’ve visited our website or read our Mission, you already know that. But what does it look like on the ground? We have a Reconciliation Action Plan for our Branch, which we reflect upon and update as we engage with it. We offer our members a variety of resources on Truth and Reconciliation, Reducing Bias and Prejudice, Promoting Racial Inclusivity, and LGBTQ2SI+ issues. We actively promote diversity — including geographical and practice diversity, and additional issues more unique to CBABC — in our Sections, on our Committees, and in our leadership. None of us of course has this perfect. I’m most certainly not perfect. This is ongoing work, that involves engagement and dialogue and effort. I look forward to engaging in that ongoing work with all of you.

Clare Jennings

president@cbabc.org

EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

Building the Family Law Lawyer Meeting the community’s needs

amily law lawyers advise and represent clients facing one of the most stressful periods in their lives: a reconstruction of a family unit. Those clients, who sometimes are children, rely on their lawyers to guide them and provide clarity at a time when their emotional, financial, physical, and spiritual well-being is compromised. Those clients not only look to their lawyer for legal help but also seek resources to move through this experience. To meet clients’ needs and expectations, a family law lawyer requires knowledge, skills, and a self-awareness that arguably differs from some of their colleagues. Indeed, many colleagues are grateful to the family Bar for taking up this work so they don’t have to. Implicit in this sentiment is a recognition that this is a valued area of practice, important to the community, and yet a challenge that many lawyers do not pursue. According to the Law Society of BC’s 2020 Annual Report, 2,051 of the 13,059 practising lawyers report performing some family law work. That’s about 15% of the Bar, and a smaller percentage have specialized. A common reference about family restructuring is that 40% of all relationships end in separation and that about 38% of those relationships involve children under the age of 18. That reflects a significant segment of our community needing legal help. We often hear about the “unmet legal need,” including for those needing family law advice and representation. Increasingly, there are discussions and initiatives about how to address this:

the Law Society of BC Innovation Sandbox, advocacy to permit non-lawyer service providers, and speculation about establishing tribunals with guided pathways. Family law lawyers, who see clients after they have attempted resolution on their own, or have to untangle “agreements” made without legal advice about rights and responsibilities, or know the value of taking quick steps in court to preserve a client’s safety or secure property, know that the family law lawyer can be invaluable to clients. Timely, stable, and reasonable resolution, and a methodology for future review of parenting and child support agreements are the key results family lawyers achieve. One of the challenges facing the family law Bar is the supply of law school graduates who are aware of the requirements for a family law practice and have developed a baseline of knowledge, skills, and selfawareness to begin serving clients. This baseline needs to include the theory, statutes, and jurisprudence in family law, along with business and tax law, personal and business finances, brain science, and the impact of adverse childhood experiences on decision-making. Education needs to include critical thinking skills, problem-solving principles, including collaborative practice, mediation and negotiation, courtroom procedure and advocacy, and client management. It also includes developing selfawareness to set boundaries when helping clients, and managing one’s

own emotions, mental health, and reactions to difficult conversations and situations. This list isn’t exhaustive, but the topics are fundamental. BC’s law schools don’t yet offer this package. And that’s a problem if we want to have enough lawyers to provide these services. Some say that the law school is not responsible for this type education; rather it should be achieved through the Professional Legal Training Course or articling. That doesn’t make practical sense for any hopeful lawyer. A student cannot be expected to pay upwards of $50,000 and incur debts in excess of $75,000 and not graduate with what they need to successfully practice law in area of great opportunity and need. The development that can be achieved during the three-year period of law school is far greater than what can be achieved in articles. Students need to know what a family law practice looks like and have the opportunity in law school to prepare for that. The way we build lawyers, through law school education and the admissions process, will be the topic of study and debate over the next several months. Your engagement and voice matters.

Kerry L. Simmons, QC

ksimmons@cbabc.org OCTOBER 2021 / BARTALK 5

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CHANTAL M. CATTERMOLE

Pandemic Practice Points

Maintaining a successful Family Law practice during COVID-19

he COVID-19 pandemic has introduced significant unprecedented challenges to all aspects of our lives. Due to stressors such as individuals losing their jobs, complete disruption of our conventional routines, and restrictions on socializing outside of one’s household, the pandemic has particularly taken a toll on couples and families. In fact, the stressors of COVID-19 have contributed to an increase in divorce rates in Canada and around the world. The consequent increase in case load for family law practitioners is a challenge that practitioners are continuing to adapt to. In the face of the increased case load for many practitioners, this article details some practice points for maintaining a successful family law practice during the “new normal” of the pandemic. EMBRACING TECHNOLOGY

In March 2020, courts in British Columbia closed for all but urgent matters. This measure, along with the provincial health officer’s order for businesses to close, led to the necessity of embracing the use of more technology in family law. For chambers matters, family law practitioners adapted to remote appearances held on Microsoft Teams or by phone. Similarly, mediations and arbitrations are occurring remotely on Zoom. Requirements for the verification of identity have adapted to allow for remote verification by video. 6 BARTALK / OCTOBER 2021

Finally, more than ever, lawyers are using technology, such as Zoom and teleconferencing, to meet and to communicate with clients. For law firms to continue their practices seamlessly on a remote basis, it is imperative to ensure that lawyers and staff all have access to computers and systems support. It is also helpful to ensure that all lawyers and staff have an effective, reliable and constant means of communication, such as by phone or by Slack instant messenger. INCREASING FLEXIBILITY

Not only is being flexible important for the practice of law during the pandemic, but it is also important for clients, who now more than ever have competing obligations with work and family. COVID-19 has taught family law practitioners to utilize creative strategies to most effectively help our clients. As one example, client meetings have largely transitioned to Zoom and phone conferences. Collaboration between practitioners has also adapted to a more flexible platform: although practice group meetings and file check-ins cannot happen in-person in the firm, they do occur regularly on Zoom or videoconference. Maintaining this connection and collaboration among colleagues is crucial to a successful

family law practice, not only to keep everyone informed and in the loop but also to maintain rapport and strong relationships. NETWORKING AND MARKETING

While legal conferences and seminars have moved to online platforms, family law practitioners should use creative strategies to maintain and even increase networking and marketing. Despite the lack of in-person network opportunities, there has been a rise in “Zoom coffee” meetings, online networking events, and LinkedIn connections. For example, Clark Wilson’s family law group has produced various blog series, such as the Valentine’s Day and Parenting During a Pandemic series, to market their services to clients. Blog posts are an excellent way of marketing while also communicating to clients our knowledge of the newest developments in the law. KEEPING IN TOUCH WITH CLIENTS

Lastly, it is imperative to maintain open communication with clients. Let clients know that although you may be working from home, your practice will otherwise be “business as usual” and they will not notice any disruption in your representation of them. Continue to keep clients informed regarding any further changes to office policies and services. Your clients will appreciate being kept apprised of your processes and it will comfort them to know that their family matter can continue to move forward despite the pandemic.

Chantal M. Cattermole is a partner with Clark Wilson LLP, where she is co-chair of the Family Law group. She is a certified family mediator, arbitrator, parenting coordinator, and collaborative professional.

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REBEKA BREDER

Who Gets the Dog or Cat Upon Separation?

OVID-19 has had a significant impact on the separation rate of couples in Canada. When it comes to children who are stuck in the middle of disputing parents, families, and their lawyers can turn to legislation to guide them through the separation process. The same cannot be said about issues surrounding companion animals during separation. There is no legislation that deals specifically with companion animals upon separation. When a couple separates, who gets the dog or cat? What are the individual partners’ rights? Does the companion animal have any rights in all of this? To date, some answers can be found only through case law. Those who truly love their companion animal, do not think this raises issues about “just” a dog or cat. Many people take pet custody issues just as seriously as child custody ones — as they should. Pets are indeed family members, and an increasing number of people feel that way. The law, however, has been slow to catch up with societal feelings about, and expectations for, animals. Historically, courts in pet custody cases have said that pets should not be treated in law as family members, but rather as personal property. Some judges have also been outright annoyed that litigants spend precious court time fighting over pet custody issues.

In some cases, judges held that, as distasteful as it may be, in the case of two loving and devoted pet owners, the court has to determine which one has the better property claim, and then award ownership of the pet to that person. Factors that courts have considered — and still consider — include who paid for the pet upon purchase or adoption? Who signed the purchase or adoption contract? Who has been paying for the veterinary bills, food, doggie daycare, and other expenses? Under whose name is the animal licensed at the veterinary clinic or with the city? Essentially, courts consider evidence that can be proven in writing. That said, courts in British Columbia have gone beyond the traditional factors to also consider what is in the best interest of the animal when determining who is the rightful legal owner or guardian. So far, experts

Many people take pet custody issues just as seriously as child custody ones — as they should. have not been required to explain why it is in the best interest of the animal to be with one person, instead of the other. Instead, issues such as who has formed a stronger bond, who takes time to care for

the animal more, whether there has been any suggestion of abuse or neglect, have all formed part of the consideration of what is in the best interest of the animal at issue. With respect to shared custody orders for companion animals, courts have generally held that they “should not be in the business of making shared custody orders,” and that deciding those issues takes time away from more “important” matters. With respect, if courts have time to deal with mundane issues such as contractual disputes, or litigation over who gets the fancy car or furniture post-divorce, the court should indeed be “in the business of” deciding on matters that are fundamentally important to people, such as their companion animals. Shared custody has already been ordered in Small Claims in British Columbia, since the legislation allows the court to deal with opposing claims to personal property. Overall, there is increasing recognition in the judicial system across Canada that animals are indeed important, and although they are technically still “property,” they are a special kind of property, that warrant unique considerations. The cases referred to herein are mainly in the civil litigation context. However, the principles and consideration of what is in the best interest of the animal can be applied in the family law context too when dealing with the division of “property.” Rebeka Breder is an animal law lawyer, and is the founder and chair of the first CBABC Animal Law Section. OCTOBER 2021 / BARTALK 7

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LENEIGH M. BOSDET

The Elusory Nature of the “Marriage-Like Relationship”

ver since the Family Law Act S.B.C. 2011, c. 25 came into force in British Columbia, the definition and determination of which relationships are considered to be “marriage-like” and therefore meeting the definition of “spouses” as set out in the Act has become a high stakes endeavor. The question is an important one because for those couples that are unmarried, if they are found to be living in a marriage-like relationship for a continuous two-year period as it is defined in section 3(1) of the Family Law Act, it allows standing for claims to property division and spousal support. Meanwhile, the caselaw has not necessarily served to clarify the criteria or made it any easier for lawyers who practice family law to provide advice. Although many cases do provide a list of factors, the court is also clear in the cases that a “holistic” approach needs to be considered and it is not simply a matter of going through a checklist. One would think that the most important factor would be cohabitation, but that factor is clearly not determinative or even necessary. In the case Dey v. Blackett 2018 BCSC 244, the judge found that the parties lived in the same residence for more than two years, they shared sleeping arrangements, had a sexual relationship, they returned to the same residence on a daily basis, and carried out domestic duties together. They represented themselves to 8 BARTALK / OCTOBER 2021

those they knew as a romantically involved couple. However, there was a marked absence of financial independence that the court found to be indicative of a lack of intention to live in a “marriage-like relationship.” So, in the end, the judge did not find that they were spouses and therefore able to make claims under the Act to property division or support. In contrast, a recent very interesting case which has garnered much attention in BC is Han v. Dorje 2021 BCSC 939. The facts of the case are that the parties never lived physically together although the Claimant, Ms. Han, alleges that she has a child with Mr. Dorje arising from a sexual assault, which she alleges occurred in October of 2017. Mr. Dorje is the high lama of the Karma Kagyu School of Tibetan Buddhism, and he travels the world teaching Tibetan Buddhists Dharma and hosting ceremonies in which Buddhists express their gratitude and devotion to Buddha. Master Elwood, in this case, goes through the various cases on unmarried couples living in marriagelike relationships and determines that while the facts of this case do not fit into most of the factors, he confirms that the court should not consider the factors on a checklist basis and should look at it holistically. He quotes from several cases throughout the country, including

the 2003 Saskatchewan: Yikiwchuk v. Oaks 2003 SK QB 124 case where Mr. Justice Myers states: “It is this variation in the way human beings structure their relationships that make the determination of when a ‘spousal relationship’ exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain.” The Master goes on to quote from a BC Court of Appeal case, Weber v. Leclerc, 2015 BCCA 492, which states at paragraph 23: The parties’ intentions — particularly the expectation that the relationship will be of lengthy, indeterminate duration — may be of importance in determining whether a relationship is “marriage-like.” While the Master did not decide at this stage that the relationship was “marriage-like” he certainly indicated that it may be a possibility and left the door open procedurally for Ms. Han to pursue her claims. In the end, which relationships are marriage-like? That depends on your unique circumstances and it is essentially impossible to predict with certainty, which creates risk for the parties. Leneigh practices exclusively in family law and has an emphasis in her practice on out of court resolution. She is the chair of the Okanagan Collaborative Family Law Group and currently the 2021-2022 chair of the CBABC Okanagan Family Law Section. Leneigh is trained in mediation and in the collaborative practice approach.

advocacyinaction Access to Justice for Families Ensuring all families have access to justice is a key component of the CBABC Agenda for Justice 2021 (cbabc.org/a4j). Based on input from members, CBABC lobbies the government for several recommended reforms in the area of family law.

A SUSTAINABLE MODEL FOR LEGAL AID CBABC calls on the BC Government to fund a legal aid system that: Expands

financial eligibility for all services;

Expands

the scope of coverage for family, criminal, immigration, and poverty law services;

Establishes

a compensation system that allows for legal representation in both court and out-of-court resolution systems; and

Provides

a fair compensation to legal aid lawyers.

We also advocate that legal aid be established as an essential service and all PST revenue collected annually on legal fees be directed to fund legal aid, as that was the rationale for the tax when it was introduced.

EXPANDED SCOPE FOR FAMILY LAW SERVICES CBABC recommends that the BC Government make critical investments to support families who need legal aid services: Expanding

the scope of representation on issues of divorce, guardianship and parenting arrangements, child and spousal support, and asset/debt division.

Increasing

use of technology to access legal advice and representation as well as courts and out-of-court resolution services.

\ EMAIL: ADVOCACY@CBABC.ORG

UNIFIED FAMILY COURT CBABC advocates that a Unified Family Court system be developed for British Columbia, as has been suggested by various studies such as the Family Justice Reform Working Group 2005 report, produced as part of the BC Justice Review Task Force. In a recent ThoughtExchange of family law lawyers, this issue was ranked as the most important.

TRANSFORMATION OF THE CHILD PROTECTION SYSTEM Finally, CBABC recommends that the BC Government prioritize a review and transformation of the child protection system to modernize the system, its policies, programs, funding, and legislation, so that the rights of children will be protected and changes to their circumstances are completed in a timely manner. Children and families engaged in the system must be able to make informed decisions and have legal representation, with affected low-income families having access to legal aid.

CBABC ACTION — WHAT WE ARE DOING The CBABC Family Law Working Group has a mandate to monitor developments in the law and the practice of family law, prepare submissions to reform family law, and provide recommendations to the Policy & Advocacy Committee. These volunteers were very busy last year, providing a submission to BCLI for the review of pension division legislation, as well as a formal response (bit.ly/bt1021Advocacy2) to the BCLI consultation paper on modernizing the Child, Family and Community Service Act. The recent recovery of unmarked graves of children at former residential schools in BC reminds us of the significant number of Indigenous children who continue to be removed and displaced from families today. This fall, the working group prepared a written submission to the government, which will be available to read soon, on ways to improve the child protection system.

OCTOBER 2021 / BARTALK 9

fromthebranch 2021-2022 CBABC Board of Directors CLARE JENNINGS President

Crown Counsel Victoria

ALEEM S. BHARMAL, QC

SCOTT MORISHITA

Community Legal Assistance Society Vancouver

Rice Harbut Elliott LLP Vancouver

1st VicePresident

2nd VicePresident

JUDITH JANZEN

MYLENE C. DE GUZMAN

BRANDON D. HASTINGS

Onyx Law Group Vancouver

De Guzman Law Centre New Westminster

Cassady & Co. New Westminster

RANDOLPH W. ROBINSON

PATRICIA D. BLAIR

BALJINDER KAUR GIRN

Crown Counsel Vanderhoof

River Valley Law Duncan

Public Prosecution Service of Canada Vancouver

ADAM C. MUNNINGS

LISA M.G. NEVENS

Munnings Law West Vancouver

Department of Justice Canada Vancouver

Finance & Audit Committee Chair

Aboriginal Lawyers Rep

Director at Large

Young Lawyers Rep

Equality & Diversity Rep

Director at Large

Your perks are just a click away. Start saving. Visit: cbabc.org/memberperks for

10 BARTALK / OCTOBER 2021

BRITISH COLUMBIA

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KIRAN KANG

Embryos and Separation A Canadian perspective

he Government of Canada estimates that roughly one in six couples experience infertility. As such, it is no secret that couples are increasingly turning to Assisted Reproductive Technologies (“ART”), such as in vitro fertilization (“IVF”) to treat infertility. A successful IVF cycle can result in multiple embryos, which some individuals choose to freeze for future family planning. Embryo freezing (also known as embryo cryptopreservation) is a procedure that allows embryos to be stored for future use. Given the myriad of issues that couples in pursuit of IVF are forced to contend with, it is not surprising that many fail to consider what would happen to their frozen embryo(s) in the event of a separation or divorce. This issue was highlighted in mainstream media when actress Sofia Vergara’s ex-fiancé sought to use the couple’s frozen embryos after they had separated. Her case highlighted the complexities involving embryo ownership and control. Interestingly, the law in relation to the use of frozen embryos after separation in Canada was unclear until the issue was considered by the Ontario Court of Appeal in S.H v. D.H (2019 ONCA 454). Prior to S.H. v. D.H, some Canadian courts recognized reproductive material as property governed by contract law. In S.H v. D.H, the Ontario Court of Appeal concluded

that neither contract nor property law principles govern. S.H. v. D.H. involved a couple who during their marriage had contracted with a laboratory in the United States of America to create in vitro embryos. The embryos were created with two anonymous donors. One of the viable embryos was implanted in the wife, who became pregnant and gave birth. The other embryo was frozen. The parties subsequently divorced. The former wife sought to have the frozen embryo implanted in her and the former husband opposed the use of the embryo. Although the former husband had previously consented to the former wife’s use of the embryo when it was created, he later changed his mind and withdrew his consent. The former husband wrote to the laboratory storing the embryo and withdrew his consent to his former wife’s use of the embryo. The laboratory refused to release the frozen embryo to the former wife in the absence of a court order. At trial, the motion judge applied principles of contract and property and determined that the embryo be released to the former wife. The decision was overturned on appeal. The Ontario Court of Appeal held that the husband was permitted to withdraw his consent in accordance with the governing legislation and regulations and could rely on the protections

afforded to him under both the legislation and the criminal law. In Canada, Parliament has imposed a consent-based model through the federal Assisted Human Reproduction Act (the “AHRA”) and the Assisted Human Reproduction (Section 8 Consent) Regulations (“Consent Regulations”). Under the Regulations, a “donor” includes a couple who are spouses at the time the in vitro embryo is created, even if neither party contributed reproductive material to the embryo. Section 14(3) of the Consent Regulations provides that if the donor is a couple, either spouse may withdraw consent before an embryo is used. What’s interesting about the AHRA statutory scheme is the criminal component involved. Recognizing the fundamental importance ascribed to human autonomy, section 8 of the AHRA specifically outlines the requirement of prior “written consent” in accordance with the Regulations. Section 60 of the AHRA sets out the offence and punishment under the AHRA, which can range from a fine not exceeding $500,000 or to imprisonment not exceeding ten years on indictment, or to a fine not exceeding $250,000 or to imprisonment not exceeding four years on summary, or both. Given the unique criminal component involved with the AHRA, it is important for parties to not only know the state of the law, but the severe consequences of non-compliance with the AHRA. Kiran Kang is an associate with Richards Buell Sutton LLP practising in the areas of Family Law and Estate Litigation. OCTOBER 2021 / BARTALK 11

Indigenousmatters SHAWN J. BOBB

Indigenous Alienation A deer in headlights

any Indigenous peoples are “parties” in the family system. There are an alarming number of cases involving child protection, and less between separated parties. State intervention in child protection cases is rooted in the historical grievances and cycles of harm, grief, and suffering. There are similar factors in the civil context of family law that is so foreign in its values, beliefs, and approach. It is actually quite alarming. The disparity between Indigenous cultures, beliefs, and values is in complete contrast to the family law system. Some communities survived the onslaught of government assimilation and are well rooted in culture and tradition. There are others that still look to find or revive their identity. These communities that I speak of are “reserve” communities. Of the reserve communities, there is a big distinction to the “western” push of individualism: the concept and closeness of family in everyday life. Family is a broad net reinforced by a constant residency of family in one location, as opposed to an individualistic approach. Indigenous ways focus on the collective and inclusiveness of people. Identification and definition of relations are important. For example, grandparents can be great uncles and aunties, and cousins can be sisters and brothers. Way of life is also a sharp contrast to westernized life. Culture and traditions are woven into daily life. A significant amount of Indigenous peoples 12 BARTALK / OCTOBER 2021

rely on their surroundings for food and sustenance. Hunting, fishing, and gathering food from the surroundings is an integral part of Indigenous communities. These are not just for food, but play an important part of the culture, connection to our surroundings, and ceremony. These are just a few examples, but these highlight the contrast and experience that Indigenous peoples may have in the family law context. The misunderstanding and misperceptions of Indigenous peoples leads them to avoid the system, or worse, experience an alienating process. There appears to be limited knowledge of, or experience with, Indigenous peoples, their communities, or way of life. This is particularly important when coming together in any context in the family law system. For example, in a Family Case Conference, Judicial Case Conference, mediation, or a contested application before the court where the child’s best interests are being decided. The lack of knowledge on the part of lawyers and judges of the people they are serving increases the chances of negative outcomes and experiences. First and worst is the application of personal experiences and views on Indigenous parties that are quite foreign and sometimes offensive, however well intentioned. This is usually driven by the adversarial approach and lack of knowledge. What may be appropriate in one’s eyes, may be completely the opposite

of the family involved or what is otherwise in the child’s best interests. The question is what is the solution? For those with Indigenous parties before them, one answer is knowledge. Knowledge is acquired through experience, awareness, and understanding. Every lawyer that represents a client must know who their client is in order to speak for them. Every judge that sits at a courthouse that sees Indigenous peoples appear before them on a regular basis must experience the community around them. This means effort and openness; taking the time to be amongst the people and in the communities. Learning the ways of the people that they interact with in their professions. It also means adopting Indigenous ways into the fabric of how family law processes are established. An increase of Indigenous “policy” makers, lawyers, and judges is critical. More importantly, Indigenous communities need to implement their own processes to address the needs of families in their own communities. A respectful relationship and reciprocity of knowledge between Indigenous communities and those involved in the family law system will not just benefit Indigenous peoples, but everyone in our society. Shawn is a family law lawyer in Surrey, British Columbia. He is a member of the Nlaka’pamux Nation (Spuzzum) and has practised law for 17 years.

FRANCES ROSNER

Indigenous Children Deserve More Than Pan-Indigenous Periodic Exposure to Culture In light of the significant history of separating Indigenous children from their families and communities, resulting in widespread loss of culture and cultural alienation, it is critical for decision-makers to prioritize cultural connection and reconnection for Indigenous children. Prioritizing these vital connections and fostering the child’s Indigenous identity involves more than attending a pan-Indigenous annual event or participating in school-based activities that may or may not be specific to the child’s distinct Indigenous culture. While this level of exposure is an important part of fostering a sense of pride and dignity in an Indigenous child — a deeper and more enduring connection occurs when a child is connected to their territory/ community and immersed in the presence of their parents, extended family (including non-familial), elders, and knowledge keepers. The transmission of distinct Indigenous values, beliefs, customs, and language occurs daily and through immersion. Fostering a strong cultural identity is a way of being rather than something external that is limited to annual pan-Indigenous or periodic exposure. Thus, when a child is residing primarily away from their Indigenous culture — it is essential that decision-makers know the distinct Indigenous community(ies) to which that child belongs and make decisions that will give that child the opportunity

to be among their people and in their territory/community to the greatest extent possible. It is the child’s right to know and belong to their Indigenous culture and community, and practice free of discrimination, their cultural traditions, beliefs, and customs. This is well recognized in provincial, federal, and international law. Though notably and regrettably, the Family Law Act does not overtly include cultural protections under the s. 37 Best Interests of Child framework — as it was derived from a western view of what is best for children. It can nevertheless be argued that parenting arrangements that do not, to the greatest extent possible, protect the Indigenous child’s right to their cultural identity through key cultural connections, is not in the child’s best interests because it would jeopardize that child’s psychological and emotional safety, security, and well-being. The significance of preserving an Indigenous child’s identity should be central to decision-making when determining what is best for that child, and therefore, it requires a broad and expansive approach. Decisionmakers, at all levels, should inform themselves about the child’s territory/community, nation, and family and allow themselves to be guided by those knowledgeable about that child’s distinct culture. It is well documented through reports and publications that cultural alienation and loss of culture has deleterious effects on Indigenous

children — adversely affecting long-term outcomes. There are several recommendations on how to foster the Indigenous child’s cultural connections, including how to learn about and discover their culture and community when there has been a significant loss of transmission of culture due to residential schools and the child welfare system. The Truth and Reconciliation Commission of Canada — Calls to Action (2015)1, The National Inquiry into Missing and Murdered Indigenous Women and Girls — Calls for Justice2, and the Wrapping our Ways Around Them: Indigenous Communities and Child Welfare Guidebook (updated 2021)3 provide the historical context and roadmap for Indigenous children to thrive. The roadmap for each child will differ depending on the circumstances but Indigenous children deserve more than panIndigenous periodic exposure. Decision-makers should set the standard high in terms of meeting their duties, legal and otherwise, to enable children to be immersed in their Indigenous culture. This occurs by ensuring regular and frequent contact and connection to territory/community, parents, extended family (including nonfamilial), elders, and knowledge keepers. Knowing these connections is where the roadmap begins. 1 3

bit.ly/bt1021fr-1; 2 bit.ly/bt1021fr-2; bit.ly/bt1021fr-3.

Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.

OCTOBER 2021 / BARTALK 13

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feature

JUDITH A. JANZEN

United Family Courts Why not British Columbia?

he idea that Unified Family Courts (“UFC’s”) are the solution to the inefficiencies, high legal costs, and barriers to justice arising from the overlapping jurisdiction between Provincial Courts and the Supreme Courts goes back to at least 1974. At that time, the Law Reform Commission of Canada had recommended a nationally implemented UFC model to address the shortcomings. The governing notion was that family legal issues were best dealt with as an integrated response, which included alternative dispute resolution and co-ordination with auxiliary social services. The 1970s saw fundamental changes in substantive family law. UFC’s were the procedural counterpart meant to ensure that the reforms would not be rendered useless because of inefficiencies of time and cost. However, a national strategy never materialized. Instead, provincial pilot projects to implement UFC’s met with uneven results. Today, the provinces that maintain UFC’s constituted them three or four decades ago. They include Manitoba (1984), New Brunswick (1979), Saskatchewan (1978), Newfoundland (1990), Nova Scotia (1989), and Prince Edward Island (1981). By 2009, these provinces had reached the number of sites that they maintain today, with no expansion since that time. The experiences of Ontario and British Columbia are different and

opposite. Ontario constituted its UFC in 1990. By 2009, there were 17 locations providing a simpler system for family litigants. Ontario continued to expand and today maintains 25 UFC locations with a commitment to complete the expansion by 2025. At the Opening of the Ontario Superior Court of Justice in 2019, Associate Chief Justice Frank Marrocco remarked that the expansion of UFC’s is a significant reform, which genuinely enhances access to justice. By contrast, British Columbia’s pilot project in 1974 to address the fragmentation of jurisdiction failed. It was hoped that the project would address the shortage of counselling and conciliation services for families, as well as a lack of legal representation for children whose rights were directly affected by adversarial proceedings. The pilot project drew on the recommendations of a 1972 Royal Commission on Family and Children’s Law chaired by Mr. Justice Berger of the Supreme Court, and included a full-time judge of the family division of the Provincial Court, two social workers with experience in children’s mental health, and a pediatrician familiar with child abuse. The pilot project established a single registry for all court documents. It empowered family counsellors and family advocates to assist the court in resolving family legal problems.

In 1979, the Royal Commission’s work was evaluated by the Ministry of the Attorney General. Its findings were largely positive but by then the political climate had changed. A change in government in 1975 in the context of nationwide inflation and unemployment led to provincial and national fiscal restraint, which sealed the fate of the pilot project. It was abandoned. The problems with family justice identified long ago persist and are worse than ever. A single court for family law matters continues to be the recommended solution in compelling reports issued in 2005 (“A New Justice System for Children and Families,” Family Justice Reform Working Group of the Justice Review Task Force), and in 2012 (“Meaningful Change for Family Justice: Beyond Wise Words,” the final report of the National Action Committee’s Family Justice Working Group). The CBABC’s Agenda for Justice 2021 calls for the implementation of a United Family Court in BC. The new Divorce Act has modernized family law and complements the BC Family Law Act with common approaches to co-parenting and alternative dispute resolution. As noted earlier, the provinces in Canada that have successfully implemented UFC’s did so close in time to substantive family law reforms of the 1970s. Why not British Columbia, and why not now?

Judith A. Janzen is a co-founder and shareholder of Onyx Law Group and practises primarily in the area of family law litigation. OCTOBER 2021 / BARTALK 15

feature

PATRICIA BLAIR

Mediation and Legal Aid BC It’s time for mediators to get a raise

he range of hourly billing allowed by Legal Aid BC (“LABC”) for lawyers preparing for or attending mediation is now $113.39 to $124.73, depending on years of call. The hourly billing rate for mediators under the Disbursement Tariff is $83.90 per hour, no matter how much training or how many years of experience the mediator has. LABC also expects parties to share the cost of mediation equally. This means that if both clients are on a legal aid contract the mediator will receive $41.95 per hour from each client. On March 1, 2021, the new federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) came into force. Section 7.3 of the new Act is labelled “Family dispute resolution process” and requires parties of a family law proceeding to try to resolve matters that may be subject to an order under the Act through a family dispute resolution process, to the extent that it is appropriate to do so. On March 18, 2013, almost eight years earlier, the provincial Family Law Act, SBC 2011, c. 25 came into force. Part 2, Division 1 of this Act is subtitled “Resolution Out of Court Preferred.” Section 4 ensures that parties to a family law proceeding are aware of their options for resolution and encourages parties to resolve their family law matters through agreements and appropriate family dispute resolution before making an application to court. 16 BARTALK / OCTOBER 2021

Currently, when filing a Notice of Family Claim in Supreme Court or an Application About a Family Law Matter in Provincial Court, lawyers for a family law client are obligated to sign a Lawyer’s Certificate or Statement pursuant to section 8 of the Family Law Act confirming that they have discussed with and advised their clients of various types of dispute resolution. LABC provides lawyer hours for preparing for and attending mediation under a standard family law contract. It also provides for the cost of a mediator for a set number of hours to be billed by the lawyer as a disbursement. As of May 2021, the LABC Disbursement Tariff states that mediation must be carried out by a qualified mediator. For a lawyer to become a qualified family law

Any family lawyer will attest to the high value a skilled mediator brings to a family law file. mediator they must have experience in family law, 80 hours of approved mediation skills training, and 14 hours of approved training in family violence. More than 160 hours of training and a minimum of two years of experience in a family lawrelated practice, as well as 40 hours

of mediation work are required for non-lawyers to be admitted to the family mediation roster of Mediate BC. These hours do not include the annual continuing professional development requirements to maintain mediator qualifications. Just about any family lawyer will attest to the high value a skilled mediator brings to a family law file. In the Access to Justice themed August 2018 issue of BarTalk (bit. ly/ bt1021p10-1), Attorney General David Eby stated that the government wanted to not only promote but also transform access to justice, in part, by identifying and addressing needs at the front end and encouraging the use of consensual resolution processes. Legislation at both levels of government now impose a duty on parties to a family law matter and their lawyers to resolve matters outside of court. In August of 2019, the Association of Legal Aid Lawyers negotiated an agreement with the provincial government and LABC to gradually increase hourly rates for lawyers in an effort to retain lawyers willing to accept legal aid contracts. Mediator rates were not included in this increase. If we want the highly trained and skilled professionals to provide the out-of-court dispute resolution processes that the law requires families to use to resolve their family law issues, then it is time for government funding of LABC to expand to adequately compensate them. Patricia Blair is a family law lawyer and mediator practising at River Valley Law in the Cowichan Valley on Vancouver Island.

professionaldevelopment

Science-Informed Practice Series This fall’s Science-Informed Practice Series examines the connections between Adverse Childhood Experiences, brain health, client capacity for decision-making, and client and family well-being. It is recommended for lawyers who assist clients in estate planning, estate litigation, youth criminal justice, or family law. The series is CBABC’s contribution to the Transform the Family Justice System Collaborative of Access to Justice BC. Launched in December 2020, the Collaborative invites us to consider how trauma, toxic stress, and low resilience affects children and families and contributes to further disruptions later in life. What is the role of a lawyer and the justice system in improving the conditions experienced by people interacting with us? If access to justice means access to the conditions that allow everyone to have a good life, what changes do we need to make in our justice system? Featuring three leading physicians sharing the science and lessons learned in the health sector, Part 1: Adverse Childhood Experiences also includes Nancy Cameron, QC leading a discussion of why this matters to lawyers. Part 2 includes mediator Wayne Plenert highlighting the impact on client decision-making. The series concludes with a discussion on how the family justice system can change to reduce the impacts on child and parent well-being. Zara Suleman, Nancy Cameron, QC, Jane Morley, QC, and Kerry Simmons, QC share their perspectives. Oct 15

Part 1: Adverse Childhood Experiences

Nov 5

Part 2: Brain Development and Client Well-Being

Nov 8

Part 3: Transforming the Family Justice System

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OCTOBER 2021 / BARTALK 17

feature JESSIE RAMSAY

The Complexity of Gender Identity Under the Family Law Act

ection 37 of the Family Law Act, SBC 2011, c 25 codifies the principle that the only consideration in determining the appropriate parenting arrangements pertaining to a child is what is in that child’s best interests. This section has garnered significant respect and support as it puts the child’s interests before that of either of the parents. While the application of section 37 in considering orders for parenting arrangements is clear, what was not clear until recently was whether section 37 applied to circumstances outside of that realm. In a recent decision by the British Columbia Court of Appeal (“BCCA”), the BCCA considered the application of section 37 of the Family Law Act, SBC 2011, c 25 in the context of a child making decisions in accordance with section 17 of the Infants Act, RSBC 1996, c 223. In particular, the BCCA considered whether a court can make bald declarations regarding a child’s best interests pursuant to section 37 of the Family Law Act in a context where orders regarding parenting arrangements are not being sought. In A.B. v. C.D., 2020 BCCA 11, the BCCA considered matters surrounding a child’s gender identity and the validity of the child’s consent to undergo medical treatment for gender dysphoria. While the BCCA was faced with a variety of issues on appeal, an interesting discussion surrounded the application of section 37 of the Family Law Act

where orders are not being sought in accordance with Part 4 of the Family Law Act. At the conclusion of the trial, the trial judge made the following “bald” declarations pursuant to section 37 of the Family Law Act: a. The child receive the medical treatment for gender dysphoria recommended by the Gender Clinic at BCCH; b. The child be acknowledged and referred to as male, both generally and with respect to any matters arising in these proceedings, now or in the future, and any references to him in relation to this proceeding, now or in the future, employ only male pronouns; c. The child be identified, both generally and in these proceedings, by the name he has currently chosen, notwithstanding that his birth certificate presently identifies him under a different name. The BCCA termed the foregoing declarations “bald” declarations to indicate that they are declarations not otherwise coupled with a substantive order in relation to the care of the child. Despite the apparent good intentions of the trial judge, the BCCA held that while the best interest of the child is undoubtedly the paramount consideration animating Part 4 of the Family Law Act, its application is limited to those

matters respecting guardianship, parenting arrangements or contact with a child. Rather, when dealing with health care decisions that trigger the application of section 17 of the Infants Act, what is in a child’s best interests is within the purview, at least initially, of the child’s health care provider. To this end, the Court at paragraph 119 states: In our view, s. 37 deals only with considerations to be taken into account in “the making of an agreement or order… respecting guardianship, parenting arrangements or contact with the child.” The provision does not contemplate freestanding judicial declarations as to the “best interests of the child” that are unconnected with agreements or orders respecting guardianship, parenting arrangements, or contact in particular, where a child has consented to health care in accordance with s. 17 of the Infants Act, s. 37 of the Family Law Act does not furnish a court with authority to enter upon a de novo consideration of the child’s best interests in respect of medical treatment. The foregoing comments by the BCCA are a welcomed reminder as to the limited applicability of section 37 of the Family Law Act. While it is attractive to turn to section 37 of the Family Law Act for all matters involving a child, one must be mindful of the binding legal tests present when the application of other legislation is triggered. Jessie Ramsay is partner at Baker Newby LLP and is part of its family and commercial litigation departments. OCTOBER 2021 / BARTALK 19

feature

BRANDON HASTINGS

Order Taxonomy in Supreme Court The “final order” made after application

nder the Supreme Court Civil Rules [SCCR], R. 2-1, various actions are started by a Notice of Civil Claim (“NoCC”). The NoCC will generally either culminate in a settlement or trial, pending which various applications may be brought for interlocutory relief — it is usually easy to tell what is an application versus a summary trial: applications ask for something different than the NoCC. After a hearing under the SCCR, costs are assessed on the basis of a tariff set out at Appendix B to those Rules (bit.ly/ bt1021bh-1). Thus, it is generally clear under the SCCR what is a trial (results in a final order) and what is not a trial (results in not a final order). Not so much under the Supreme Court Family Rules (“SCFR”). The originating pleading under the SCFR is the Notice of Family Claim (“NoFC”). Like the NoCC, the NoFC generally results in a trial or settlement, and similar to the SCCR, various applications may be brought for interlocutory relief in the meantime. Like the SCCR, the SCFR provides a costs tariff (though much simplified) at Appendix B (bit. ly/bt1021bh-2). Costs under the SCCR are, on their face, significantly more adaptable to the nuances of a case. Under the SCFR, for example, it appears $3,000 (item 1) is awarded for various initiating steps in a case of 20 BARTALK / OCTOBER 2021

ordinary difficulty, irrespective of the number of issues claimed (claimable issues include divorce, parenting, child support, spousal support, assets/ debt division, and parenting). It’s what happens after the final order or settlement is reached under the SCFR, that things get interesting. “After the final order” non-family lawyers may be wondering, “except for costs and appeals, isn’t the case basically over at that point?” While in large part, the SCFR seem to contemplate that (or perhaps simply fails to robustly grapple with the inverse), the answer is no. Family Law very frequently deals with various “ongoing” issues — child support, spousal support, and parenting. Each of these may require “revisiting” as circumstances change. Unlike the Provincial Court of British Columbia, whose originating pleading (the “Application About a Family Law Matter”) contemplates that you may be applying in respect of “new” or “existing” issues and asks whether there are existing orders or agreements (so you do actually start a new case [a.k.a. file a new originating pleading] in respect of variation of previous orders), under the SCFR one does not start a new action to vary an existing order. Rather, one makes an application in the existing action (R. 10-3 (1) (c), R. 10-5 (2) (b)), which action would

generally have been started by NoFC. This creates a somewhat confusing state of affairs. The SCFR defines a “final order” as “an order finally resolving a claim in a family law case even though the order may be subject to change” (R. 1-1 (1) “final order”). So obviously, both an order after trial, and a non-interim order which varies a trial order, are final orders. Why, then, does the SCFR provide an order made after a variation be titled “Order Made After Application” — the same title given to orders after interlocutory applications — while an order after trial is titled “Final Order” (R. 15-1 (1))? I don’t have a good answer. Form here does not appear to match function, and is especially likely to create confusion in our growing population of selfrepresented litigants. The rabbit hole gets deeper. Knock-on procedural confusion may include the ability (or lack thereof) to file a Notice of Trial (R. 14-1 (1)), the (remaining) duration of examination for discovery (R. 9-2 (2)), the correct tariff items for costs (try to suss out which items under Appendix B (bit.ly/bt1021bh-2) apply to an application to vary; then see B.K.A. v D.M.A., 2011 BCSC 17 (especially at para 59) and Pousette v Janssen, 2021 BCSC 1364 (especially at para 8)), and whether leave to appeal is required (Court of Appeal Act, s. 7, Court of Appeal Rules, R. 2-1 (c)).

Brandon Hastings [bhastings.com] (he/ him) is a lawyer and mediator who practices on the traditional territory of the Qayqayt first nation, with Cassady & Company in New Westminster.

feature SUZANNE WILLIAMS

collaborative law for: a) qualified child specialists whose sole role is to support the children and help parents understand their needs; b) coaches who help clients build skills and develop co-parenting plans as roles shift from spouses to co-parents and relationships are recalibrated; and c) full team commitment to support the best interests of the child, which reduces conflict in favour of constructive problem solving.

Collaborative Law for Family Well-Being “It is time to positively support families at their time of greatest need, a time of grief and restructuring, by transforming the family justice system to support family well-being.”1

ollaborative law supports family well-being and is available through the BC Provincial Court Early Resolution process, the BC Collaborative Roster Society’s Pro Bono project, and eight collaborative law practice groups across the province. Where did collaborative family law come from? Collaborative law began in the 1990s because lawyer Stu Webb was frustrated with the adversarial way families resolved disputes. Since then, research has consistently shown the need for families to reduce intense, prolonged conflict in separation and divorce to avoid harm to children and adults across their lifespan (e.g., CDCKaiser Permanente Adverse Childhood Experience Study). What are the hallmarks of collaborative family law? The International Academy of Collaborative Professionals says collaborative law: 1. Empowers family members to resolve their family law issues without going to court; 2. Takes a multi-disciplined approach with specially trained lawyers, mental health professionals (coaches/child specialists), and

financial specialists who educate, guide, and support as needed; and 3. Intentionally reduces conflict, and its impact on each family member, by creating a safe and dignified environment to problem solve the legal, financial, and human aspects of family disputes. Parties and professionals must sign a participation agreement that commits them to transparently share information, and work with a specially trained collaborative team in problem solving their dispute with integrity and respect. The professional team can be as small as two lawyers, or as large as a full complement of multi-disciplinary professionals depending on the needs and circumstances of the family, and they distribute the workload so the best expertise available is used efficiently and cost-effectively.

Collaborative law is frequently done in bite-sized pieces. Where does collaborative law fit in consensual dispute resolution? Within the range of out-of-court dispute resolution options, some advantages of collaborative law are: 1. Children come first: Where children are a client’s priority, consider

2. Paced rather than a positional pressure cooker: Collaborative law is frequently done in bite-sized pieces. Information sharing often occurs with the parties in team sessions at the same time so transparency, questions, and clarifications occur in real time, and positions or unrealistic expectations are avoided. There is generally no one big event where matters are decided, which can be unlike court, arbitration, or mediation, and this reduces pressure and stress for all. 3. Durable resolution, not just result: Families are coached by skilled team members as individuals, and as co-parents, to strengthen communication within the process and resolve underlying issues that may otherwise sabotage the effective implementation of a fully completed agreement in the immediate and longer term. Cameron, Nancy, “Transforming the family justice system by focussing on family wellbeing,” November 23, 2020 Keynote, BC/ Yukon Colloquium, Access to Justice BC: bit.ly/bt1021sw-1 1

Suzanne Williams is co-chair of the Victoria Collaborative Family Separation Professionals group and practises at Strathdee Williams Family Law. strathdeewilliams.com OCTOBER 2021 / BARTALK 21

sectiontalk u EXECUTIVE RECRUITMENT CBABC was thrilled that this year’s Section elections saw the most number of new volunteers join the ranks of Section Executives! New Executive members introduce fresh, topical ideas to Sections programming, while giving lawyers the opportunity to volunteer with CBABC. To volunteer, please contact Sections@cbabc.org to learn about any vacancies or connect with current Section Executives.

u VIRTUAL ENGAGEMENT Sections Executives continue to plan virtual meetings that go beyond watching a speaker. Some highlights from last year include pre-meeting and post-meeting breakout rooms for networking, Section socials on Kumospace (mingling in a new way!), door prizes determined by an online spinning wheel, and speed-mentoring.

Justice-Kamloops and Family Law-Westminster were closed this year, and enrolled members were directed to other Regional Sections. Our

Sections Policy was updated to ensure we offer the best possible service to Section Executives and members.

Members

who want to gather in-person to join a CBABC province-wide virtual meeting can host a “hub.” With this, we blend delivering great programs to everyone, while supporting strong local connections.

u FAMILY LAW SECTION MEETINGS Our Family Law Sections are among are most active, offering a variety of meetings that are both regional and wide-ranging. Some noteworthy meetings from last year include: Annual

Family Law Year in Review (2020-Now) The Okanagan Section hosted Aaron Franks and Todd R. Bell to cover all significant family case law updates from 2020, from BC and beyond.

u STAYING HEALTHY

CBABC updates our inperson meeting protocols as the provincial public health orders evolve. Virtual Section meetings continue to be the most accessible and safe way for CBABC members to connect and learn. As indoor meeting capacity is increased and Section Executives identify new venues, some in-person meetings are returning. Members are asked to follow the requirements of the venue, which include staying home if you have symptoms, and may include showing a vaccine passport, wearing a mask, or other measures.

u CHANGES TO SECTIONS As times change, so do Sections: Due

to low enrollment and activity, the Criminal

22 BARTALK / OCTOBER 2021

Primer on the Divorce Act Amendments The Vancouver Island Section invited Erin Brook and Samantha de Wit to explore what the Divorce Act Amendments will bring for family law practitioners in BC. The

Nature of Joint Tenancies, Presumptions of Advancement and Resulting Trusts The Vancouver Section hosted Nicholas Davies, who shared the latest developments in these challenging areas.

Thorny

Issues around Spousal Support and the Spousal Support Advisory Guidelines The Vancouver Section also hosted Kimberley Santerre to present on spousal support.

ABORIGINAL LAWYERS FORUM

\ EMAIL: SECTIONS@CBABC.ORG

HOLIDAY BANQUET The CBABC Aboriginal Lawyers Forum would like to cordially invite you on Friday, November 26, 2021 to share a special evening with us. Enjoy a three-course dinner, keynote address from our special guest, Brad Regehr, Past President of the CBA National, silent auction, and presentations of the ALF Awards.

Location: Fairmont Waterfront Hotel, 900 Canada Place, Vancouver, BC 5:30pm Cocktails | 6:15pm Program Start | 6:30pm Dinner Register by November 22 uuu bit.ly/bt1021-ALF-Awards

UPDATE YOUR SECTIONS! Sections are the most important tool in the CBA for professional development, networking and advocacy.

Update now: cbabc.org/enroll WLF UPDATE

CBA Leadership Online Symposium for Professional Women The CBA Women Lawyers Forum is thrilled to announce that registration is now available for its biannual event taking place virtually on October 7 and 14. Focused on Justice Rosalie Silberman Abella’s decision-making at the Supreme Court of Canada, the Symposium will feature three panel discussions, each exploring Justice Abella’s legacy in a key area of the law: constitutional and human rights law; administrative law; and family law. The panels will include a diverse range of speakers from the Bar, the Bench and the Academy, and Justice Abella herself will join us to deliver a keynote address on the second day of the Symposium! Don’t miss this much anticipated and inclusive event — find out more and register online today: bit.ly/bt1021wlf.

OCTOBER 2021 / BARTALK 23

practicetalk DAVID J. BILINSKY

Examining the Facts

Signs are pointing toward new approaches r Now it’s time for change I feel the the future In the hands of our youth... r

— Music and Lyrics by D. McDaniel & N. Sixx, recorded by Mötley Crüe

oes family law need deep structural changes in how it resolves disputes? John-Paul Boyd, QC, an accredited family law arbitrator, family law mediator, and parenting co-ordinator, in an article in The National (Feb. 2019) entitled: “Family Justice in Canada is at a Breaking Point” (bit.ly/ bt1021db-1), wrote the following: “[W]e should consider removing family law matters from the courts altogether. These are disputes that could be moved into a specialized administrative system offering both adversarial and non-adversarial dispute resolution alongside: education on parenting after separation, child development and conflict management; social services providing parenting, housing and employment support; and financial and mental health counselling, parenting assessments and similar services.” John-Paul notes that the current system sees up to 80% of family law litigants as self-represented. High fees simply place lawyers out of reach for the vast majority of people undergoing family disputes. One can ask the question as to how long this can be sustained before the public views the social contract given 24 BARTALK / OCTOBER 2021

to courts and lawyers to resolve such disputes as being broken and needing replacement. The Canadian Forum on Civil Justice (“CFCJ”) prepared an Infographic on the “Cost of Family Law Disputes” from data from the Canadian Research Institute for Law and the Family’s (“CRILF’s”) “An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implications of Various Dispute Resolution Methods” report (bit. ly/bt1021db-2). They looked at Collaboration, Mediation, Arbitration, and Litigation and found that while Litigation was viewed at the most useful dispute resolution process for high-conflict disputes

The current system sees up to 80% of family law litigants as self-represented. (such as: risk to an adult or child, risk to property, allegations of violence or substance use, mental disorder, or alienation), Mediation and Collaboration were most useful for low-conflict disputes (such as hearing the voices and preferences of children, disputes about care and parenting, child or spousal support, and division of property and debt).

Almost all lawyers using collaboration and mediation agree that the results achieved are in the interests of the children. CFCJ found the average cost to resolve high-conflict disputes as follows: Collaboration was $25,110, Mediation $31,140, Arbitration $40,107, and Litigation $54,390. For low-conflict disputes the average costs were: Collaboration $6,269, Mediation $6,345, Arbitration $12,328, and Litigation $12,395. Clearly the financial costs drop and the social outcomes are higher when alternative methods to litigation are utilized. John-Paul Boyd, QC echos these findings: “[T]he public purse would be better spent supporting processes that are child-centred, holistic, cooperative to the extent possible, and promote the capacity of family members living apart to resolve disagreements on their own.” The studies show that the current system is not working for the vast majority of people with family law disputes. Now is the time for change. The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members. David J. Bilinsky served on the Board of Directors of the SDRCC and is the former Practice Management Advisor, Law Society of British Columbia. Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com

dave’s techtips Solutions Put Forward to Change Family Law Along with J.P. Boyd, QC’s suggestion of removing family cases from the courts and placing them into a special administrative tribunal aimed at promoting the well-being of children, he advocates greater use of unbundled legal services and non-lawyers assisting clients with legal problems.

in the office twice that time. Just crazy.” Ms. Bishop stated, “a number of commercial firms now operate without a billing target model, showing that ‘it can be done,’ and the challenge was to create a variation of that model or ‘another model altogether’ that worked for the family law sector.” She also stated that she “would like to see greater use of collaborative law.” FLiP has taken some steps along a new path. Three years ago, FLiP started the first training scheme in psychologically based supervision to help family

What other solutions have been put forward to change family law? Here is a sampling: Nick Hilborne wrote an article in legalfutures.co.uk entitled, “Family lawyers need to replace billing targets with new business model” (August 5, 2021) (bit. ly/bt1021db-3) in which he interviewed Gillian Bishop, cofounder of pioneering London firm Family Law in Partnership (“FLiP”). Ms. Bishop stated: “Family lawyers should scrap billing targets and develop a new business model.” To Ms. Bishop, billing targets are a dead weight around the necks of many, many practitioners and lead to many young lawyers working longer and longer hours each day in order to hit them. “I have heard so many times that to record five hours chargeable a day you routinely have to be

lawyers manage work-related stress and Ms. Bishop said, “that supervision should be compulsory for family lawyers.” In the UK, there is a major overhaul of family courts to protect domestic abuse victims. The Ministry of Justice published a press release stating: “Fundamental reform of how the courts hear cases, through a new investigative approach, will be trialed as part of the Integrated Domestic Abuse Courts pilot — these consider family and criminal matters in parallel in order to provide more consistent support for victims. Emphasis will be placed on

getting to the root of an issue and ensuring all parties are safe and able to provide evidence on an equal footing — without the retraumatising effects of being in court with an abusive ex-partner.” The Ministry stated, “that this move came after an expertled review into how the family courts handle domestic abuse and other serious offences had raised concerns that victims and children were being put at unnecessary risk.” In an article entitled, “A New Approach To Nesting In Family Law,” Aylward Game Family Law, in Australia, states: “Frequently after parents separate, it is the children who switch homes between the parents, with varying degrees of frequency. This means it is the children who are subject to the demands of frequent packing up and moving house in order to spend time with each of their parents. We have in the past reflected that it must feel a little unfair to the children to be subject to this arrangement, which can be very disruptive. The idea behind nesting turns this on its head, and the children stay in one house and the parents are the ones who move in and out. This seems to place the best interests of the children at the top of the list of priorities, which is in line with the Family Law Act in Australia.” © 2021 David J. Bilinsky

OCTOBER 2021 / BARTALK 25

GIVE BACK TO THE FUTURE OF THE LEGAL PROFESSION Donate your robes to new lawyers who need them. cbabc.org/RobeBank Canadian Bar Association, BC Branch

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www.progroupbc.ca 26 BARTALK / OCTOBER 2021

Gosal & Company · Barristers & Solicitors ·

Sarj Gosal B.A., LL.B.

City Centre 2 304 - 9639 137A Street, Surrey, BC V3T 0M1

nothingofficial TONY WILSON, QC

COVID-19: Horse Dewormers and Other Nonsense When the anti-vaxxers get to court

ete McMartin’s recent column in the Vancouver Sun summed up the zeitgeist of the day. “Enough is enough,” he said. “I’m done with all of the COVID-19 skeptics. I’m done with those whose ignorance of science is so profound and intractable… they put their trust in celebrities, politicians, and quacks.” The anti-vaxxer disinformation machine has been so successful at seeding doubt about COVID-19 vaccines that more than 98% of deaths from COVID-19 in the US now occur among the unvaccinated. ICU beds that would normally be used by cancer and other critically ill patients are now taken up by sick anti-vaxxers. You’d think the virus only targets those who bravely stand up to government and who refuse to be vaccinated in the name of FrEeDuMb. There must be a conspiracy. Somewhere. Somehow. The media is filled with accounts of vaccine refuseniks about to be intubated, pleading with nurses for the vaccine, only to be told it’s too late. Or the obituaries of anti-vaxxers who claimed on social media COVID-19 was a hoax and that the rest of us were all clueless sheeple (that is, before they died from COVID-19). Or those who are hospitalized with COVID-19 and who refused the vaccine because they read on Facebook that the horse de-wormer “Ivermectin” was a better treatment (even Ivermectin’s manufacturer, Merck, disavows use of this veterinary product as a treatment for COVID-19).

Courts and administrative tribunals will soon deal with the legality of mandatory vaccinations and vaccine passports; whether someone can be forced to vaccinate or be denied entry into public places; whether someone can lose their job if they refuse the jab; whether a lawyer can be guilty of conduct unbecoming for refusing to be vaccinated (thereby putting clients and staff at risk); and in the case of the medical profession, whether doctors and nurses can be disciplined for spreading anti-vaxxer disinformation. How will adjudicators deal with nonsense arguments and quackadoodle conspiracy theories that may be raised in legal proceedings? Now don’t get me wrong. Testing the authority of government, a regulator, or an employer to require vaccination against COVID-19 is a live constitutional, human rights, and employment law issue (particularly in circumstances where a person can’t be vaccinated owing to an underlying medical condition). But what about the current anti-vaxxer nonsense narrative propagated by the anti-government, FrEeDuMb crowd who have done their own ReSeArcH on YouTube and Facebook? What will courts say to a litigant who argues that lockdowns, mask mandates, and the requirement for vaccinations are part of a “mass psychosis”; that it's all a conspiracy created by big pharma, the mainstream media, and a

totalitarian government to deprive us of our rights? How will they deal with arguments that the vaccine has not been tested enough and “could” have harmful long-term side effects? (Ignoring that the harmful long-term side effects from death by COVID-19 are somewhat worse). How will they deal with claims that COVID-19 is just a bad flu and that deaths are overstated due to “comorbidities” (Grandma may have had COVID-19, but it was really the hangnail that did her in). How will courts deal with the followers of antivaxxer disinformation social media darlings in medical circles who claim the vaccines are unsafe or unnecessary, notwithstanding the fact that current COVID-19 deaths overwhelmingly occur among the unvaccinated? Likewise, when a litigant refuses the vaccine because they prefer taking a horse de-wormer (because, of course, it’s “their body and their choice”), how seriously should this defence be dealt with in legal proceedings? Everyone has a right to be heard in litigation, but when it’s just antivaxxer nonsense being argued, I’m expecting a very firm line in the sand to be drawn by courts and adjudicators. Tony Wilson, QC is a Life Bencher of the Law Society, a Vancouver Franchise Lawyer, humourist, self-professed thought leader and all-around raconteur. Consequently, the views expressed herein are his alone and do not reflect the opinions of the Law Society, the CBABC, or their respective members. OCTOBER 2021 / BARTALK 27

communitynews TIPS FROM

KEEPING UP WITH CHANGE

Changes to legislation and rules of court can be time consuming to track. However, it is something the librarians at Courthouse Libraries BC ("CLBC") try to stay on top of and share with the legal community. CLBC's Court Rules Amendment Tracker and Guides to Tricky Legislation can be found right on the CLBC website (bit.ly/3yF0IXK). Take a look at the BC Provincial Court ("BCPC") Family Rules Amendment Tracker (bit.ly/3BDWYYF) to get a quick view of how the BCPC Family Rules and Forms have changed in the last year in one simple table setting out the affected rule, type of change, regulation bringing the change, and date the change comes into force. CLBC also has an amendment tracker for the BC Supreme Court Family Rules (bit.ly/3kKCkPz) and a History of the BC Family Relations Act (bit.ly/3kNAuNQ). One thing that doesn’t seem to change is that lawyers often manage relationships both with their clients and with self-represented parties. If you find yourself looking for a resource where you can direct a member of the public for family law information, CLBC’s Clicklaw website has a wealth of information gathered from organizations across the province. One of CLBC's Common Questions on Clicklaw helps address how the new BCPC Family Rules may affect an individual’s family law matter (bit.ly/2WH7Ypn). If these resources don’t answer your questions about recent changes to family law rules in BC, you might want to take a look at the video Q&A on the new Provincial Court Family Rules (bit.ly/2WH94Bv). For more information on accessing the physical and virtual resources, CLBC's Library Service Updates page is the place to go (bit.ly/3mTVVzD).

ANNOUNCING NEW FEATURES TO CLEBC ONLINE BOOKS

Book.” You can now run searches and view results in the specific practice manual that you’re using.

You asked, we listened... and acted! CLEBC is proud to announce some new features to their online books that will improve your searching and accessibility.

New Expanded View. Using the full screen view by selecting expand, as well as hiding the menu on the left, offers an improved reading experience when you are in a section of a book.

Looking for guidance in a CLEBC online practice manual? Find just what you need faster and more easily with “Search within

28 BARTALK / OCTOBER 2021

Downloading forms and precedents in our practice manuals is also now easier and faster.

Simply select the “Download all Forms & Precedents” link and save them to your computer with a single click! We hope that you find these new features helpful. And, as always, we encourage your feedback. For any questions or comments, please email us at custserv@cle.bc.ca.

communitynews The Fort St. John Women’s Resource Society Celebrates its 40th Year Legal services for northern British Columbians are chronically inadequate in comparison to those available to citizens in the south. The vast land area comprising what we know as the “North” means that many communities are underserviced, often resulting in barriers in accessing legal assistance and advocacy. Despite this, the team at the Fort St. John Women’s Resource Society is making strides to shift this reality and provide the tools their community needs to advance equality, safety, and well-being through education, advocacy, and social justice. Celebrating its 40th year in service, the Fort St. John Women’s Resource Society is a non-profit organization that works with low-income clients of all genders. Led by Executive Director Amanda Trotter, the Society now operates a drop-in centre, a housing program for women and children leaving abusive situations, an outreach store offering free clothing and necessities, and hosts several therapeutic wellness programs open to all. The Fort St. John Women’s Resource Society also houses busy Poverty Law and Family Law Advocacy programs, funded by the Law Foundation of British Columbia. The Foundation began funding a network of legal advocacy programs to fill in the service gap left by the closure of legal aid clinics in 2002. The Fort St. John Women’s Resource Society has housed the Poverty Law Advocacy program, now headed by legal advocate Melody Blaney, since 2006. The Family Law Advocacy Program has been in operation since 2018 and is led by legal advocate Telitha Nielsen. Fort St. John has faced challenges over the course of the pandemic as affordable housing and family violence crises mean many more individuals are in need of accessible legal services, making the legal services the Society provides even more critical. The Fort St. John Women’s Resource Society programs are well known across the province as among the most robust, engaged, and attuned to their community. We are inspired by their service and hope that the entire BC legal community will be looking on to see the impact they cultivate in their next 40 years of service.

The Work of the Canadian Centre for Elder Law On October 1, we celebrate National Seniors Day. Despite being the backbone of our communities, older people face significant barriers such as poverty, unsafe housing, discrimination, health care issues, and abuse. The pandemic has highlighted both the vulnerability of older people and the chronic institutional abuse and neglect they experience in long-term care. So much more can be done to develop policy responses to address their needs and enhance their access to justice. In 2003, the British Columbia Law Institute established the Canadian Centre for Elder Law (“CCEL”) as its division focused on law and policy issues related to aging. The CCEL collaborates with older people, non-profit community agencies, and other key stakeholders to conduct research and develop reports and educational tools. Currently, the CCEL is working on the following: Updating and re-publishing our Practical Guide to Elder Abuse and Neglect Law in Canada as a bilingual wiki; Exploring

models of oversight over the practice of un-regulated health care assistants working in long-term, home, and community care; and

Developing

resources to teach health care stakeholders how to support people living with dementia to participate in decision-making.

Find CCEL publications at bcli.org/ccel.

OCTOBER 2021 / BARTALK 29

barmoves Who’s Moving Where and When Kristil Hammer

Kezia Messakh

joined Farris LLP. Kristil’s practice focuses on corporate real estate and corporate & commercial law.

joined Clark Wilson LLP’s Strata Property group and will also be assisting all groups with civil litigation matters.

Natalie Sparling

Flora Wu

joined Farris LLP. Natalie’s expertise primarily lies in corporate & commercial law, including M&A, real estate, and estate planning.

joined Lawson Lundell as an associate in their Litigation & Dispute Resolution group. Flora was called to the British Columbia Bar in 2021.

Cohen Hocking

Jonathan Andrews

joined Clark Wilson LLP’s Indigenous Law and Private Company Mergers & Acquisitions groups.

joined Lawson Lundell as an associate in their Litigation & Dispute Resolution group. Jonathan was called to the British Columbia Bar in 2021.

Melanee Bryniawsky

Alice Kim

joined Clark Wilson LLP’s Indigenous Law and General Business Law groups.

joined Lawson Lundell as an associate in their China group. Alice was called to the British Columbia Bar in 2021.

Spencer Oberst

Harman K. Bains

joined Clark Wilson LLP’s Capital Markets, Securities, Mergers & Acquisitions group.

joined Lawson Lundell as an associate in their China group. Harman was called to the British Columbia Bar in 2017.

30 BARTALK / OCTOBER 2021

Bar Moves space is at a premium and available for free to members on a first-come first-served basis, so send your Bar Move (max. 30 words) and a high-resolution headshot photo to bartalk@cbabc.org now.

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BARMOVES.

Liyan Wu

Anisha Jagpal

joined Clark Wilson LLP’s Commercial Real Estate group as an associate. Liyan can assist clients in both English and Mandarin Chinese.

joined Hamilton Duncan as an associate working with clients in insurance defence and civil litigation.

Margaret Sasges, QC

Ravina Sandhu

founded Camas Law, a firm focused on Wills, Estates, Trusts, and Conservation Law.

is an experienced family law lawyer and certified family law mediator who joined Hamilton Duncan from Smyth Hoover Sandhu that previously served the Tri-Cities community.

Chanelle Gilbert

Cole Rodocker

joined the new firm, Camas Law, based in Victoria, BC. Chanelle will continue her practice focusing on estate planning and administration, and societies law.

joined Hamilton Duncan as an associate. Cole is a corporate commercial lawyer with experience from shareholder and contractual disputes to insurance, administrative tribunal, and regulatory issues.

Sylvia Borowska

Raman Johal

joined the Hamilton Duncan team as an associate. Sylvia practises civil litigation, with a primary focus on insurance defence.

joined Gowling WLG’s Private Client Services team in Vancouver with extensive experience helping individuals, financial institutions, and charities alike resolve complex estate matters.

Michael Filice

Chelsea Bailey

joined Hamilton Duncan as an associate. Michael completed his articles with Hamilton Duncan and was recently called to the British Columbia Bar.

joined Singleton Urquhart Reynolds Vogel LLP as an associate in their Commercial Real Estate Practice group.

OCTOBER 2021 / BARTALK 31

Defined Benefit Pension Plan for Law Firms Most law firms have no pension arrangements at all. But that’s about to change. Lawyers Financial is partnering with CAAT, an $11-billion, not-for-profit trust, to launch DBplus, a defined benefit pension plan for law firms of any size. DBplus eliminates the funding risk for employers and creates a guaranteed retirement pension income for lawyers and staff. Everyone benefits.

For employers

For employees

• Attract and retain top talent.

• Earnings are predictable.

• Reduced costs, risks and administration.

• Reduced stress – no complex investment decisions.

• Eliminates compliance and fiduciary risks of administering a pension.

• Consolidate existing registered funds into DBplus.

The Bottom Line DBplus will provide a guaranteed retirement income that is paid monthly for life. On average, a member who participates over their entire career in DBplus is expected to receive approximately $8 in pension benefits for each $1 they contribute.

Lawyers Financial products and plans are sponsored by The Canadian Bar Insurance Association (CBIA). Lawyers Financial is a trademark of CBIA. CAAT Pension Plan is a trademark of Colleges of Applied Arts and Technology Pension Plan. 04/2020