Lawyers Brace for Change | ABRAHAM | Family Violence AND FLA
DECEMBER 2012 | www.cba.org/bc
The New Family Law Act
Parenting Co-ordination and ADR re: Family Law Act Page 12
LETTERS BarTalk Editor
Deborah Carfrae Editorial Board Chair
Michael Welsh Editorial Board Members
Candice Alderson Sandra Harper Ellen Hong Oana Hyatt David Madani Gail McKay Sarah Nelligan Clint Sadlemyer Rose Shawlee bartalk Senior Editor
Maureen Cameron
RESPONSE TO THE OCTOBER 2012 ISSUE
Drinking Way Too Much Kool-Aid – Tony Wilson BarTalk received three Letters to the Editor regarding Tony Wilson’s October 2012 column that we could not fit into this print edition of BarTalk. To read these letters go to www.cba.org/bc/bartalk_11_15/ 12_12/letters.aspx. GO ONLINE FOR MORE INFORMATION
Staff Contributors
Bianca Bishop Simon Bursell Judy Cave Tanya Galic Catherine Lau Stuart Rennie Jennifer Weber Judy Yen
The B.C. Branch of the Canadian Bar Association, 10th Floor, 845 Cambie St. Vancouver, B.C. V6B 5T3 Tel: 604-687-3404 Toll-free (in B.C.): 1-888-687-3404 bartalk@bccba.org
BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at www.cba.org/bc. © Copyright the British Columbia Branch of the Canadian Bar Association 2012. This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel. The British Columbia Branch of the Canadian Bar Association represents more than 6,700 B.C. members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.
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2 BarTalk / DECEMBER 2012
REsponse to the August 2012 ISSUE
A Big Challenge to the Justice System – David Bilinsky I read with great interest your column dealing with Online Dispute Resolution (ODR) in the recent edition of BarTalk. It is obvious from this article that you know of what you write and that your recent appointment as a Fellow of the National Center for Technology and Dispute Resolution reflects this expertise. My interest in ODR results from my 43 years at the Bar and my 26-year involvement with start-up tech companies. My current law practice is restricted to administrative law, but I started my practice as a solicitor in corporate finance and securities. After I resigned from my firm in 1986 to dive head first into the technology space, I quickly experienced business disputes for which the court system had no solution. I encountered a system that was firstly adversarial – a process that didn’t really work with software companies who were tied at the
hip and whose future depended on being able to work together. Secondly, it was much too slow – by the time that the dispute was heard, the technology was commercially obsolete. Thirdly, the decision maker had no knowledge of or background in the matter before him or her and a majority of the process involved the education of this party. Other problems with the system came as a result of the forum itself. It proved to be very difficult to run technical examples in a courtroom and holding a hearing on a Saturday morning just didn’t happen. As well, due to what I found to be a certain inflexibility of the procedure within the court setting, I often had difficulty fitting the issues involved in the dispute into the pre-existing legal structure. Indeed often the dispute was so far removed from being resolved by legal principles that it would have totally distorted the process to work within the court system. Continued on page 17... Letter written by John Rogers of R. John Rogers & Associates.
Write Us Send your Letters to the Editor to: Deborah Carfrae BarTalk Editor The B.C. Branch of the Canadian Bar Association Fax: 604-669-9601 Toll-free fax: 1-877-669-9601 Email: bartalk@bccba.org Note: BarTalk undertakes every effort to publish letters to the editor, subject to space and editorial discretion. Letters to the editor can also be found in BarTalk Online at www.cba.org/bc.
DECEMBER 2012
volume 24 / number 6
Contents
Departments
4 From the President Purposeful Contributions by Kerry L. Simmons 5 Executive Director The Family Law “Security Blanket” by Caroline Nevin 6
Practice Talk All in the Family by David J. Bilinsky
7 dave’s tech tips 8 Nothing Official Not All Things Must Pass by Tony Wilson
Sections
10 Section Update Family Law: In the Family Way – or Maybe Not Family Law-Victoria and Young Lawyers-Victoria Upcoming Section Meetings 11 SECTION NEWS Introducing CBABC’s Newest Sections Not Yet Enrolled in Sections?
Features 12 Parenting Co-ordination and ADR re: Family Law Act by Craig Neville 13 Lawyers Brace for Change by Cristen L. Gleeson 14 Family Violence and FLA by Shannon Aldinger
Guests
9
How to Avoid a Public Speaking Catastrophe by Pamela Hart
15 The Uniform Law Conference of Canada by Lisa Peters and R.C. (Tino) Dibella 16 What if Abraham had died in B.C. by Richard M. Wenner
Inside This Issue The times – they are a changing for families and family lawyers. The FLA cuts across many areas of law, so we devote most of this issue to it. Also enjoy questions of Biblical proportion about how Abraham’s heirs would do under our inheritance laws, learn to speak more convincingly than a politician and read of CBABC contributions to the Uniform Law Conference.
News and Events 18 2013 Mid-Winter Meeting of Council in Mont-Tremblant, QC New Online Home for National Magazine Legal Aid Project in China Up and Running 19 A2J Initiative Enters Research and Consultation Phase Family of UBC Law Alumnus Donates $2M to Law School Opposition to Bill C-37’s Doubling of Victim Surcharges and Removal of Judges’ Discretion 20 Vancouver Law Firm Hunter Litigation Chambers Wins Canadian Pro Bono Award Annual Pig Roast CLEBC Update 21 Legislative Update Branch & Bar Calendar Congratulations! 22 Nanaimo Battle of the Lawyers’ Bar Bands Court of Appeal Criminal Practice Directive Trivia Question Call for Submissions 2012 Mentoring Receptions at UBC, UVic and TRU
Also In This Issue
2
LETTERS
23 LAW FOUNDATION OF BRITISH COLUMBIA 24 PROFESSIONAL DEVELOPMENT 25 DISPLAY ADS
Member Services
26 Bar Moves 27 New Members DECEMBER 2012 / BarTalk 3
From The President KERRY L. SIMMONS
Purposeful Contributions Make sure your voice is heard
C
ontribution to effective law reform is part of the purpose of the CBA. Over the years, we have established our credibility with government and other agencies as a reliable and trusted advisor. Our members contribute hundreds of hours of volunteer time to develop our submissions on wide-reaching areas, such as family law, or on specific details affecting the administration of justice, such as the Supreme Court Civil Rules. Sometimes ideas for law reform originate and are developed in a Section. In other instances, the Family Law Working Group, Automobile Insurance Committee, or Legislation and Law Reform Committee generate ideas based on their review of the B.C. legal landscape in light of developments in other jurisdictions. At other times, ministries considering changes in law and policy bring those ideas to the CBABC for consultation. Regardless of where the idea originates, the submissions made are a result of discussions and debates among members, hours of research and writing, and meetings with our Legislation and Law Reform Officer Stuart Rennie. The dedication of members such as David Dundee of Kamloops, Lisa Peters, Eleanor Gregory and Bill Veenstra in Vancouver, and Tino DiBella and Barbara Flewelling in Victoria to lead their colleagues is essential to law reform work and the CBABC appreciates their contributions. You can get involved by responding to calls for submissions and by volunteering to be part of these committees. Often it is the Legislative Liaison of a Section whose interest is piqued and he or she goes on to make contributions to law reform. Some of you may be grateful that other members have the inclination and aptitude for law reform. In that case, make sure you review the submissions on the Branch web page at www.cba.org/bc/initiatives/ main/submissions.aspx. This page 4 BarTalk / DECEMBER 2012
includes not only our law reform submissions but also our advocacy initiatives. This brings me to the bi-monthly update on what the CBABC is working on for the benefit of our members, the legal profession and the public. Reporting to Provincial Council, Past President Sharon Matthews represents the CBABC at meetings examining the introduction of the Civil Resolution Tribunal to suggest areas of improvements to the regulation of that initiative. We are communicating with the Office of the Superintendent of Motor Vehicles about the proposed Driving Notice Review Board. Relying on the analysis of the Government Relations Committee, the CBABC recommended to the Registrar of Lobbyists that a Code of Conduct for lobbyists was not required at this time. The CBABC accepted the invitation of the Law Society to participate in its Legal Services Providers Task Force, which will examine whether the
Law Society should regulate lawyers or also non-lawyers such as notaries. This Task Force will have its first meeting by the end of this year. In October, I made submissions to the province’s Standing Committee on Finance and Government Services where the CBABC recommended increased funding for justice system infrastructure needs (technology and people) and for sustainable funding for legal aid. Executive Officer Carmen Rogers is co-ordinating our written response to the White Paper on Justice Reform (Part One) with the input from our Sections, committees and individual members. Since the announcement of the White Paper, the CBABC has called for the immediate appointment of more judges to the Provincial Court, a critical need brought again into sharp relief when the court lost three judges in October alone. Law reform and advocacy are part of the foundation of the CBABC. We are recognized as the voice of B.C. lawyers on matters of law and justice. Make sure your voice is heard and send your thoughts to me at president@bccba.org.
Kerry L. Simmons
president@bccba.org
executive director caroline nevin
The Family Law “Security Blanket” Weaving a lasting resolution
T
here’s an interesting anomaly that arises when you talk to people about family law and its practitioners: those with little or no experience of family law assume it’s a high-litigation practice, and those immersed in it know differently. Combatant lawyers and spouses battling for a one-sided win in court is a monochromatic image from another age. Today’s family law “security blanket” is a colourful mosaic of options designed to balance and share rights, responsibilities and resources in the face of changes in family relationships. While court remains an option, it is more and more unlikely to be the first strand chosen when it comes to weaving a lasting resolution of family law issues. The reality is that the large majority of family law disputes are settled without court proceedings. Most are resolved without any litigation at all and of those that can’t be resolved in advance, if a lawyer is involved, the majority settle once litigation is commenced. Mediation, arbitration, case conferences and other dispute resolution options are all in the Family Law toolkit. The objective of these alternatives is to provide a lasting resolution in a way that minimizes as much as possible the level of conflict and long-lasting harm, particularly when children are involved. Children, parting spouses and their bank accounts all benefit when family law matters are resolved quickly and fairly. Research throughout the world and here in B.C. shows that effective resolutions are achieved when people have early access to relevant legal information and a lawyer’s advice. Where the issues are complex or a relationship dynamic is interfering with reaching a resolution, legal representation becomes critical because litigation is not just likely but often necessary to protect
the interests of one or more individuals. The Legal Services Society (LSS) recently conducted a review of their family law services, and found that 75 per cent of duty counsel clients were able to resolve their legal issues, as were 71 per cent of telephone legal advice clients and 70 per cent of their advice lawyer program clients. LSS also reported that an independent review of the Justice Services Branch’s family mediation services alone found savings of $7.8 million in avoided court costs. Clearly, legal advice and resolutionbased programs are working. What’s also working is the ability to negotiate: in various surveys of family lawyers conducted by the CBA last year, lawyers report that negotiations between counsel most often result in a settlement of issues either before or after litigation commences. When one party is not represented by counsel, lawyers report that issues often
proceed to court that should not be there or could otherwise have been settled. Family law cases that make it to court are the ones that proved incapable of resolution by other means, with unresolved issues that inevitably worsen with delay. One of the challenges we face in B.C. is that family law cases are in the same “queue” as a huge backlog of criminal and civil law cases. The shortage of judges in provincial court has already placed thousands of criminal cases at risk of dismissal due to delay. At the same time, there is chronic strain from under-resourced court staff and Crown, as well as ongoing time and resource pressures that result from the huge percentage of litigants without legal representation. The new Family Law Act provides a solid framework for early, effective resolution of family law issues. Now is the time to weave in more resources where they will do the most good for our province’s families: legal advice aimed at early and fair resolution of family issues, and legal representation when issues can’t be resolved with advice alone.
Caroline Nevin
cnevin@bccba.org DECEMBER 2012 / BarTalk 5
practicetalk david J. bilinsky
All in the Family Collaboration tools for lawyers r
Boy, the way Glen Miller played. Songs that made the Hit Parade. Guys like us, we had it made. Those were the days!... r
– Music and Lyrics by Charles Stouce and Lee Adams and recorded by Archie Bunker.
O
ne of the big changes in the legal profession has been the switch to the lawyer as collaborator: with their colleagues, with their staff and not the least, with their clients. Part of this is due to the work of Thomas Friedman and his “The World is Flat” philosophy. Part of it is
due to the fact that the world has changed and clients have insisted on becoming equals with their advisors. Not only do clients want to be kept advised on what is happening with their cases, they want to be involved with the details of their cases – discussing strategy, options and not the least, potential cost-impacts. Collaboration places new demands on lawyers. In my view, this goes beyond just seeking instructions – which is the most basic level of collaboration. When you seek instructions, you and the client are speaking from each person’s separate goals and values... in order to reach a common path of how to proceed. But there are much more rewarding, and deeper, ways to collaborate. In a true collaborative environment, there is a deep, continued and shared dialogue over proposed outcomes, options and impacts. In such an environment, each party seeks to build and enhance meaningful and beneficial long-term relationships.
6 BarTalk / DECEMBER 2012
Each party has a commitment to common and shared goals that strive to go beyond the current engagement. There is also shared leadership, a sense of community, a commitment of resources and an understanding of each party’s overarching goals. There are shared responsibilities and the development of an environment of underlying mutual understanding and trust. Needless to say, all parties have to view collaboration as being to their mutual benefit. Since lawyers have not been traditionally viewed as being high on the trustworthy scale compared to other professions (rightly or not), I believe we have much to gain by adopting a collaborative perspective. Important characteristics of a positive collaborative environment would include having frequent and open communication, preferably within a workspace that encourages and facilitates this process.
Collaboration is facilitated by structure: form follows function. The new online collaborative environments are receiving positive attention as they support the structure of collaboration. Visit any of these online spaces and you can see contact information, timelines, communications, documents, images, graphics and videos. Documents can be marked up, changed and commented on by all parties. Notes can be left and responded to. Parties are participating in a continuing multi-dimensional dialogue that is facilitated by the collaborative spaces. These spaces go far beyond what was possible using phone calls, emails and correspondence. For one, they allow communication to take place among team members, either individually, in subgroups or among the whole. The stream of communication is gathered in one place, preserving the sense that the work is a group Continued on page 7 >>> The views expressed herein are strictly those of the author and may not be shared by the Law Society of British Columbia.
David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia. Email: daveb@lsbc.org Blog: www.thoughtfullaw.com GO ONLINE FOR MORE INFORMATION
dave’s techtips So what tools are available to the collaborative lawyer? Here is a selection: Join.me This easy-to-use application allows instant screen sharing. You can review documents and arrange meetings on the fly. The free version (there is a pro version as well) offers: internet calling, screen sharing with up to 250 viewers, the sharing of control, multi-monitor support, chat and file transfer. It also supports mobile meetings from iPad, iPhone and Android devices as well as PCs and Macs. (https://join.me) Microsoft SharePoint This is the granddaddy of collaboration platforms. SharePoint is a very powerful application that goes far beyond just collaboration.
It allows you to share knowledge and ideas, craft webspaces (public or private) and support team-driven projects as well as do much much more. (http://sharepoint.microsoft.com/ en-us/Pages/default.aspx) PBWorks This collaboration platform focuses on the legal sector. PBWorks incorporates case management, client extranets, deal rooms, practice management, and knowledge sharing. (http://pbworks.com)
MindMeister This is a different approach on collaboration. This cloud application allows you to brainstorm with a client or a team in real time using its mindmapping software. (www.mindmeister.com)
AyalaLive Engage This is one of the new virtual 3d immersive collaborative spaces. You have an avatar that explores the space. What seem as pictures on the walls are actually HTML containers that can contain PowerPoint presentations, websites and the like. A meeting room with a podium and microphone allows someone to make a presentation to the group with a laser pointer. 1-1 conversations can take place as well as group conversations. Breakout rooms are available. You can interact verbally or by text chat with other avatars (private, group, or globally). You can walk, sit, gesture and present documents and share desktop content and files. You can use streaming video to deliver live events and invite users with a URL. Of course you can control meetings with role-based privileges that enable moderators to restrict who can upload or share materials. (www.avaya.com/usa/product/ avayalive-engage) © 2012 David J. Bilinsky
Continued from page 6
project. Secondly, they enhance the sense of team by allowing both synchronous and asynchronous communications. Thirdly, knowledge transfer and sharing of information are two characteristics of these spaces. Examples of such knowledge sharing in collaborative
spaces are Wikipedia and group blogs such as www.slaw.ca. They also encourage new ways of solving problems by combining project management with crowd-sourcing and social media attributes. Rather than looking back wistfully and longing for the ways and
the days of the past, I believe we can – and should – embrace these new spaces to craft better relationships with our clients. One day we too will look back at these emerging times and say: guys and gals like us, we had it made – those were the days! DECEMBER 2012 / BarTalk 7
nothingofficial TONY WILSON
Not All Things Must Pass Retirement ain’t what it used to be for m-m-my generation
T
he retirement of the indomitable, inimitable and incomparable Graham Allen from the hallowed halls of Boughton last month caused me to think about my own “retirement” from law one day. But it also made me think about the proper way people should leave their law firms and how firms should treat those who are about to become their “alumni.” Graham says he isn’t “retiring,” despite the fact that he is slightly younger than Sir Paul McCartney. But he may be of a particular age (OK let’s say “vintage”) where people actually leave their jobs to “retire” to things like golf, grandchildren and gardening while they collect their CPP cheques and go on cruises. Not Graham. He’s going to be working with Amnesty International to try to outlaw the death penalty in
countries that regularly use it; in particular, China. He’s a man with a mission, on a mission, a role model for how to “retire” from law. His simple answer? You don’t retire from law. You just work differently in law. In his “retirement speech,” he more or less pooh-poohed the whole concept of retirement, because in his view, the concept was out of date. People now live well into their 80s and beyond, and all the “isms” about retirement are now “wasms.” Things are changing because we’re living longer. 65 is the new 50. And if Sir Paul can still sing Helter Skelter at 70, then anything is possible. The problem may be one of definition. Look in the dictionary for synonyms to retirement, and you’ll find words like abandon, decampment, retreat and withdrawal. Graham tried to coin better words, and we heard “refirement,” “redeployent,” “advancement,” and “rewirement.” I am still working on catchier terms than those, given 8 BarTalk / DECEMBER 2012
my penchant for word coinage and my goal of having more new words attributed to me in the dictionary than Kegmare, solicigator, shadenfreudeh and lient when I die. Unless we’ve signed those agreements that force us to leave our firms at 65 and hand all our clients to Younger Turks, older lawyers can and should still work using their legal and other skills honed over decades of practice. We’ll just work differently as and how we want. And if we still have our own clients to spin work around, then I imagine we’ll be in a better position of negotiating the terms of our “retirement” to our firms, won’t we? The other interesting thing about Graham’s so-called retirement party is that there was, in fact, a party, which probably says good things about us at Boughton. I’ve worked at too many firms, or heard too many horror stories from other firms where people who leave a firm, for whatever reason, leave
with bitterness and resentment and burn all their bridges on the way out the door, blowing the chance for referrals from their former colleagues. Maybe they’ve found a gig that pays them more. Maybe it’s just “not working out” and they’re asked to leave. It doesn’t matter. Departing lawyers have to be civil and professional when they move on. But law firms blow it too. Changing the locks or escorting yesterday’s colleague out the door with security the day they announce their departure strikes me as a profoundly stupid way of dealing with a fellow professional who might otherwise refer work back one day. Short of something really outrageous, it’s my view that there should be a good party for pretty well any lawyer who leaves a law firm. It needn’t be more than coffee, cake and a speech, but it speaks volumes in favour of the firm that treats its departing colleagues as valued alumni. In the film Gandhi, Ben Kingsley as the Mahatma says something quite profound. He says, “We have come a long way together with the British. When they leave we want to see them off as friends.” That should be the case in our business as well. The views expressed herein are strictly those of Tony Wilson and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.
guest Pamela Hart
How to Avoid a Public Speaking Catastrophe Tools, tips and tricks of the trade
D
eath. Spiders. Heights. Public Speaking. What do all of these things have in common? Fear. Public speaking paralyses the majority of us; it’s a necessary evil – a way to promote our businesses, our products, and ourselves, yet even the most outgoing and confident individual can freeze up and break out into a cold sweat at the mere mention of the words. Usually it’s the fear of the unknown and lack of control that shakes us. Most people are afraid they won’t be given the credit they deserve from the audience, or that they’re lacking in professionalism. This uncertainty can drive a person crazy. The trick is to use that adrenaline and nervous energy to your advantage. Try not to look at stress as a bad thing; senses become sharper, thinking can become clearer and our brains can work faster – if we learn to harness that energy. The following tips will contribute to your public speaking success: 1. Writing the speech – keep the format simple: The structure of a script is that of a high school essay: the simpler the better. Don’t try to go all “academic” on people. It starts like any essay would: an opening and intent – or your thesis, your central argument and supporting information, and your closing.
2. Don’t make your speech seem scripted: Definitely write your speech, but try not to memorize every word, every sentence, every paragraph. You want to know your stuff without sounding like a robot. An audience responds to a natural delivery; you will never be able to convince them if it seems stiff and memorized to the last letter. 3. Remember to breathe! We all breathe, of course. We need air to live but we need oxygen to deliver. Learning how to breathe in preparation of a speech is almost half the battle. Techniques can calm your mind
Public speaking paralyses the majority of us; it’s a necessary evil – a way to promote our businesses, our products and ourselves. and body beforehand and during. It can make you more stable and prepared for your speech. A calm presenter has command and control of the audience. It’s important to first get comfortable in a chair or lay on your
back, close your eyes and breathe in slowly through your nose to the count of four. Feel your diaphragm rising with the inhale. Breathe out slowly through your mouth to the count of four and feel your belly fall. Complete multiple rounds of this, keep your posture steady and relaxed. 4. Key messages: What are you trying to say? Remember, people tend to tune out pretty easily – even if they’ve paid to see you speak or represent them. Usually an audience will walk away with three key messages, or three main points of your speech. It all comes down to keeping it simple. Don’t overload people with too much information, or else they will shut down their attention to you. 5. Make eye contact: If you must present to hundreds of people, it’s impossible to do the usual scan back and forth, all the while making eye contact with everyone along the way. The best thing to do is find a few individuals in the front, middle and back and focus on them throughout your speech. Making such intimate contact with these few people, will help you present the material by helping you forget you’re speaking to hundreds of people in the first place. Finally, remember that you have something important to say and people do want to listen, so give them a presentation they won’t forget. Pamela Hart is the keynote speaker of Release Your Voice. www.releaseyourvoice.com DECEMBER 2012 / BarTalk 9
sections section update
Keep Current A review of provincial Section meetings. Family Law In the Family Way – OR MAYBE NOT: What non-family lawyers need to know about the Family Law Act Written by: David Dundee, Family Law – Kamloops
Family Law-Victoria and Young Lawyers-Victoria Meeting: October 24, 2012 Speaker: Eugene Raponi, QC, Waddell Raponi Topic: Non-Court Dispute Resolution under the Family Law Act Mr. Raponi, QC discussed the shift in the Family Law Act from the Family Relations Act in the preference for non-court dispute resolution wherever possible. The new legislation emphasizes out-of-court resolution by giving equal emphasis to agreements and court orders; providing better support for out-of-court negotiations; giving the court new authority to refer parties to counseling and out-of-court dispute resolution services; and providing improved support for the arbitration of family law disputes. Mr. Raponi discussed mediation at some length and noted that while there is not good evidence of the success rates of mediation, in his experience as an active mediator, approximately 70-85 per cent of his mediations are successful (result in settlement).
Upcoming Section Meetings Below are just a few highlights of Family Law Section meetings already planned on the new FLA. December 2012 Nanaimo: Peer discussion group on the new FLA February 2013 Vancouver: Pension division and the FLA March 2013 Fraser Valley: Issues pertaining to children under the new FLA April 2013 Westminster: FLA for legal support staff May 2013 Vancouver: View from the Bench regarding the FLA Interested in the above or other Section meetings? Meetings are posted regularly to the online Sections Calendar and CBA PD Resource site. Enrolled members automatically receive notice of their Section’s meetings by email.
10 BarTalk / DECEMBER 2012
In the Family Way – or Maybe Not What non-family lawyers need to know about the FAMILY LAW ACT
Family lawyers are all busy gearing up for the new Family Law Act (FLA). Our Sections are abuzz getting up to speed with the new language, concepts, terms, and especially the transition provisions to the new Act. Courts and court services (registries, Family Justice Centres and Justice Access Centres) are also taking a fresh look at their forms, services and procedures. But what about the rest of you? Especially for those involved in wills, estates, trusts, and elder law, there are aspects of the legislation that may affect you as well. In no particular order, and with a nod to David Letterman, here is my Top Ten List of things you should know. 1. The terms “custody” and “access” are gone – though they survive under the Divorce Act. Under the FLA, it is now “guardianship,” “parenting responsibilities” and “parenting time.” Among other things, it was hoped this will get rid of the notions that only custodial parents are “true” parents, or that access parents have no parental authority or responsibility. If you want to know who has the authority to make decisions or receive information concerning children (e.g. doctors, schools), you must look to the allocation of parenting responsibilities in the order or agreement. 2. Unless there is an order or agreement to the contrary, parents who are or were living together, or who both regu-
u
larly care for the child, are both presumed to be guardians and have the same parenting responsibilities. Parents can reallocate those responsibilities by agreement. Agreements are encouraged, but even informal arrangements can be recognized if they become part of the child’s normal routine. 3. Guardians no longer automatically have authority over children’s property. Again, look to the allocation of parenting responsibilities. Moreover, if the property is over a prescribed amount or of a prescribed type, the Supreme Court has to appoint a property trustee. 4. If you take on the role of guardian and you are not a parent, you may have an obligation for child support, but it is secondary to that of the parents. If you are not a parent and your only parenting responsibilities are in relation to the child’s financial or legal interests (property trustee, litigation guardian, and maybe a standby guardian), you have no obligation for child support. 5. A child’s guardian can appoint someone to succeed him or her in that position on death. In addition, if a guardian is facing a terminal illness or the prospect of permanent mental disability, he or she may appoint a standby guardian to assist him or her and to succeed to that position once the original guardian becomes totally incapable. A parent who is not a guardian does not automatically become one upon the death of any or all other guardians. 6. Children no longer have an obligation to support their parents. (The section in the current
Act, repealed last November, was rarely invoked anyway – and when it was, usually resulted in a mess.) 7. Support obligations may now be secured by insurance or made binding on the estate of the payor. This is not new, though it is now spelled out in the Act. More significantly, support recipients can now apply to extend support after the death of the payor, both before or after the event. Under current law, if the payor died, the recipient was out of luck, unless an order or agreement already provided for the continuation of support. 8. In the event the payor dies, both the support recipient and the payor’s estate can apply to vary the support order. This may be possible now, but the Act makes it certain. Both parties can seek directions from the court. 9. With certain exceptions, the FLA requires notice before a guardian can move with the children. If there is no objection within 30 days, they can move. 10. The new Act has some of the most progressive provisions regarding parentage and child status in Canada. It is similar to the new Uniform Child Status Act, and provides rules for determining child parentage in cases of surrogacy and other forms of assisted human reproduction. For enrolled CBA members, more detailed information and available minutes from the Section meetings are online at www.cba.org/bc in CBABC Forums and Sections under Professional Development.
Section News
Introducing CBABC’s Newest Sections Solicitors’ General Practice-Central Vancouver Island The mandate of the Solicitors’ General Practice-Central Vancouver Island Section is to provide a forum for discussion to identify, monitor and analyze issues of significance to solicitors’ practice in the Central Vancouver Island Region and to promote opportunities for networking, mentorship and practice support. The Section held their inaugural meeting November 6 with Anna Jones, CA presenting on the topic of “GST/PST Transition.” Young Lawyers-Kamloops A new chapter of the Young Lawyers Section has formed in Kamloops. The Section aims to strengthen and support the network of lawyers in the Interior, and to help educate young lawyers and law students on the unique issues regarding practising outside of the Lower Mainland in other areas of B.C. Their inaugural events included a Speed Mentoring event at TRU and a two-day job shadowing of The Honourable Judge Stella Frame.
Not Yet Enrolled in Sections? Visit the Branch website and use our online enrolment form! CBABC members receive one free Section for the 2012/2013 term. www.cba.org/bc \\
GO ONLINE FOR MORE INFORMATION
DECEMBER 2012 / BarTalk 11
features CRAIG NEVILLE
Parenting Co-ordination and ADR re: Family Law Act Front and centre in a new paradigm
T
he new Family Law Act (“FLA”) coming in to effect on March 18, 2013 is the single biggest development in family law since the Family Relations Act was passed into law more than 30 years ago. There is a philosophical shift in the legislation away from the litigation model, and a new focus on Alternate Dispute Resolution (ADR). Indeed the subheading under Part 2, Division 1 of the FLA “Resolution of Family Law Disputes” says it all: “Resolution Out of Court Preferred.” The FLA coins a new phrase “family dispute resolution,” which includes the services of family justice counsellors, parenting coordinators (PCs), mediators, collaborative lawyers, arbitrators, and family lawyers in general. This article will just address the services to be provided by arbitrators and PCs under the FLA. ARBITRATION Previously, family law arbitration was governed by s.2 of the Commercial Arbitration Act (CAA), which provides that any provision of an arbitration agreement that removes the jurisdiction of the court under the Divorce Act (Canada) or the Family Relations Act has no effect. The new Arbitration Act now includes family law disputes as part of the definition of “dispute” with priority to the FLA if there is a dispute between its provisions and the Arbitration Act.
12 BarTalk / DECEMBER 2012
Now the FLA encourages arbitration of family law issues. The amendments to the CAA are designed to support arbitration in appropriate cases. The devil, however, will be in the details. The court retains considerable powers of review and variation that go beyond “arbitral error” as defined in the current CAA. Qualifications and training have yet to be established in the regulations. While cost will not be insignificant, the arbitration process can be tailored to the unique needs of the parties. Experience with arbitration in the parenting co-ordination process suggests that as long as principles of natural justice are applied it is possible to have timely and cost effective awards made, which provide accessible solutions for families in conflict. Clients and counsel can pick the qualified arbitrator of their choice, and no issue will be too minor to be arbitrated. Agreed statements of fact, concise legal briefs, and joint expert reports may expedite proceedings as the process evolves. PARENTING CO-ORDINATION Perhaps the most innovative change will be the introduction of parenting co-ordination. It is new to family law in B.C. over the last four years and now will be formalised in
the FLA. Parenting co-ordination is a child-focused ADR process that involves senior family lawyers, psychologists, social workers, and clinical counsellors (with special training in a variety of areas, including mediation, arbitration, family violence, child development, and interviewing of children) entering into agreements for renewable terms of up to two years to help “high-conflict” parents implement the terms of their parenting plan by facilitating the resolution of their disputes in a timely manner and making decisions within the scope of the court order or separation agreement pursuant to which he or she has been retained. Appointment of a PC should not be limited to high-conflict parents and complex parenting arrangements. Even the most effective parents from time to time are going to confront issues, which may involve medical challenges, travel, orthodontia, or controversial extracurricular activities. Ready access to such a resource is desirable in more than just cases with acrimonious parents. The theme of the FLA is clear. ADR is to be promoted for dispute resolution. It can also be anticipated that the court will take a more assertive approach to pressing counsel and parties on why they have not opted for mediation or collaborative resolution of their conflicts. Similarly, at the other end of the playing field, parties will be encouraged to retain PCs or, in appropriate cases, ordered to retain them. Craig Neville, family law mediator, arbitrator and parenting co-ordinator.
Cristen L. Gleeson
Lawyers Brace for Change The Family Law Act
T
he Family Law Act (the “Act”) comes into force on March 18, 2013. In the coming months and years it will certainly be interesting to watch jurisprudence pertaining to the Act unfold. Some of the most sweeping changes are contained in the provisions pertaining to common law spouses, to property division and the new duties imposed on lawyers. There is a limitation contained in the Act under which common law spouses must commence proceedings for division of property or allocation of debt within two years of the date of separation. This provision applies retroactively such that common law spouses who separated in March of 2011 may find themselves out of time to preserve their property rights even as the Act is born. This is a dramatic shift from the present in trust claims for which there is a ten-year limitation period. Additionally, common law spouses are now subject to the same property division regime as married spouses under the Act. There is a silver lining to this cloud as the enforceability of agreements generally, including cohabitation agreements, is greatly strengthened under the Act. Therefore, it is advisable for couples living common law to enter into cohabitation agreements under the Act where they wish to preserve their assets. The transition to the Act from the present regime will prove rather
difficult to swallow for some clients who would have benefited under the Act but are caught within the old legislation. Take the 65-year-old pensioner who had his home fully paid for years prior to meeting his now estranged wife of eight years. The wife made no payments into the family home. Under a present action, the husband could well lose half of the family home to the wife. However, had the action been commenced only a matter of months later under the Act, the husband could well have saved a substantial portion of the family home as an excluded asset. This reality will be very difficult indeed for some clients to accept. Interestingly, although there is a list of “excluded property,” the increase in value of the excluded property after the date of cohabitation is included within family property. Much of the property division provisions under the Act will require increased reliance on valuations and, in many cases, historic valuations. The Act does away with the various triggering events under the Family Relations Act. Rather, the sole triggering event under the Act is the date of separation. This will allow a greater measure of protection for parties facing the bankruptcy of a former spouse, whereas under the Family Rela-
tions Act the parties would need to start a Court action and seek a Section 57 declaration, often with limited time and resources. Section 1 of the Act contains a very broad definition of “family violence” to include everything from physical abuse to intimidation and indirect exposure of children to family violence. The Act imposes a duty on family dispute resolution professionals (lawyers included) to assess whether family violence is present and the impact this may have on both the client’s safety and the client’s ability to negotiate. This raises a serious question as to whether or not lawyers are properly trained and skilled in order to make such assessments. In addition, many lawyers are left uncertain how to proceed in a negotiation within the ambit of the new duty where family violence is present. Under Section 37 of the Act a number of factors are enumerated pertaining to the determination of the best interests of the child. Many of these factors engage the past conduct of the parties. These provisions appear to conflict with Sections 16 and 17 of the Divorce Act, which state that the Court shall not take into consideration the past conduct of the person unless the conduct is relevant to the ability of that person to act as a parent of a child. In practice this means that very little of the broad conduct specifically included under the Act will be considered in custody and access determinations under the Divorce Act. Cristen L. Gleeson, Partner, Baker Newby LLP. DECEMBER 2012 / BarTalk 13
feature SHANNON ALDINGER
Family Violence and FLA
Mandatory Screening and Enhanced Protection Orders Among New Provisions
T
he Family Law Act heralds a dramatic regime change in family law in B.C. The Act contains numerous significant substantive law changes as well as a new approach to family law through its emphasis on encouraging out-of-court resolutions. However, the Act only supports settlements which are fairly negotiated and that take into account the family violence framework contained in the Act. That framework includes a comprehensive definition of family violence, specific directives for legal professionals, judges and parties in such cases and enhanced protection orders. Expansive Definition: The Act expansively defines family violence (s. 1) as including: physical, sexual, psychological and emotional abuse; forced confinement, restrictions on a person’s financial or personal autonomy, and withholding the necessities of life; intimidation, harassment, coercion, threats, and stalking; intentional damage to property; and in the case of children, direct or indirect exposure to family violence. It does not include the use of reasonable force to protect oneself or others. Directives for Legal Professionals: The Act requires family dispute resolution professionals (including lawyers, parenting co-ordinators, mediators and arbitrators) to screen for family violence and, if present, to assess whether such violence may adversely affect the safety of 14 BarTalk / DECEMBER 2012
the party or a family member and the party’s ability to negotiate a fair agreement (s.8). The duty applies not only to parenting matters but to all issues under the Act. Lawyers are also required to advise clients as to whether certain dispute resolution processes are appropriate given the presence of family violence. Lawyers starting a proceeding must also certify that they have complied with these requirements (s. 197(1)). When making an agreement or order regarding parenting matters, the Act specifically requires judges and guardians to consider, inter alia, the impact of family violence on a child’s safety, security or well-being and whether the actions of the perpetrator may impair his/her ability to care for the child and meet the child’s needs. It lists factors that must be considered in this regard (s. 37 and 38). Enhanced Protection Orders: A family member at risk of violence, or another person on that person’s behalf, can apply for a Protection Order (“PO”) (s.183). “Family member” is broadly defined (s.1) and includes former spouses, relatives with whom a person resides and the person’s child. The application can be brought on a standalone basis (s. 183(2)) and without notice (s. 186). POs expire after one year unless otherwise ordered
(s. 183(4)). Breaches will be a criminal offence and may be enforced under s. 127 of the Criminal Code. The Act lists factors (s.184(1)) that the court must consider on application for a PO which include: any history of family violence, including whether there is a pattern of repetitive or escalating violence or of coercive and controlling behaviour; the presence of circumstances increasing the risk of violence, such as substance abuse, financial problems, mental health issues and access to weapons; the at-risk family member’s own perception of risks to his/ her safety; and the presence of circumstances increasing the vulnerability of a person, such as pregnancy, age and economic dependence. The Act also lists factors that do not restrict the availability of a PO (s.184(4)), including whether there was a previous PO or order restricting communication; whether criminal charges have been laid against the person against whom the PO is sought; and whether the at-risk family member has a history of returning to live with the person against who the PO is sought. Available POs (s.183(3)) include orders restricting: communication; attendance at a residence, property, business, school or place of employment; following the atrisk family member; possession of weapons/firearms and orders directing police officers to remove a family member from the home and seizure of weapons/firearms. Shannon Aldinger is a sole practitioner in Courtenay and also works in association with Megan Ellis & Company in Vancouver.
guest LISA PETERS AND R.C. (TINO) DIBELLA
The Uniform Law Conference of Canada How CBABC participated
T
he Uniform Law Conference of Canada (ULCC) has been carrying out its mandate of harmonizing the laws of the provinces and territories of Canada since 1918. The Canadian Bar Association has been involved from the start – the CBA, in fact, established the ULCC. CBABC has played an active role in the work of the ULCC by recommending a CBA member to the Minister of Justice (Attorney General) to participate as a member of the B.C. delegation to the Civil Section of the ULCC. At this year’s meeting in Whitehorse, Lisa Peters of Lawson Lundell LLP, who has been the CBABC representative at ULCC since 2005, passed the torch to R.C. (Tino) DiBella of Jawl & Bundon. The majority of delegates to the ULCC are government lawyers. It is important that the perspective of the practising Bar continue to form part of the deliberations of the Conference, something that the active participation of a CBABC delegate, along with a national CBA delegate and CBA delegates from other provinces, ensures. Greg Steele, QC, of Steele Urquhart was also in attendance, his 19th consecutive year of participating in the work of the ULCC. Greg was the CBABC representative from 1994 to 2005. In 2003/4, he was president of the ULCC, one of the few private Bar lawyers to have held that position. Greg has continued to devote countless hours to ULCC
projects after his term as CBABC representative ended, while continuing to serve on the Board and Executive of B.C.’s law reform body, the British Columbia Law Institute (BCLI). Greg became a director emeritus of BCLI in 2011. Law reform agencies like BCLI play an important role within the ULCC, bringing law reform ideas and projects to the table and providing expertise by participation of their staff on ULCC projects. Lawyers from the BCLI attend the annual meeting of the ULCC as part of the B.C. delegation. Tino and Lisa both currently serve on the Board and Executive of the BCLI, providing another link between the organizations. What does the ULCC do that is relevant to B.C. lawyers? The core function of the Civil Section of the ULCC is the creation of uniform Acts recommended by the Conference for adoption by provinces and territories. Notable examples of B.C. statutes modelled on ULCC uniform Acts (which were also adopted in other jurisdictions) include: Court Jurisdiction and Proceedings Transfer Act International Commercial Arbitration Act
Personal
Property Security Act Transfer Act The ULCC is also relevant to B.C. lawyers as a source of legal writing on a wide range of topics relevant to practice. Most ULCC projects begin with a scholarly paper reviewing the law on a particular subject and how that law lacks uniformity across Canada. These papers are available on the ULCC website: www.ulcc.ca. When a uniform Act is published on the website, it includes commentary on the provisions of the Act. This commentary can be helpful to lawyers interpreting a provincial statute modelled on the uniform Act. How can other B.C. lawyers get involved in the work of the ULCC? The ULCC is always interested in suggestions for projects. If you have views on areas of law that could benefit from harmonization, you can submit them to the CBABC delegate or directly to the ULCC. Working Groups of the ULCC (which take projects from concept through to uniform Act) are populated with practitioners and academics with expertise in the particular area of law. You may be called upon to join a Working Group, and you can contact the CBABC delegate to let him/her know of your willingness to be called upon to provide input in a particular area.
Securities
Photo L-R: R.C. (Tino) DiBella (rcdibella@jawlbundon.com), Lisa Peters (lpeters@lawsonlundell.com) and Greg Steele, QC. DECEMBER 2012 / BarTalk 15
guest RICHARD M. WENNER
What if Abraham Had Died in British Columbia?
Inheritance rights of spouses and children
I
n the book of Genesis, Abraham is remembered for his strength of character and his loving kindness. In his 175 years, Abraham had three wives: Sarah, Hagar and Keturah. Sarah died at age 127 when Abraham was 137. They had one child, Isaac, born when Abraham was 99. Abraham also had a relationship with Hagar, Sarah’s maidservant, who bore Abraham’s first child, Ishmael, when Abraham was 86. Sarah drove Hagar away shortly after Isaac was born and she is never mentioned again. (We will presume that she predeceased Abraham.) After Sarah’s death, Abraham married Keturah who bore Abraham six more children. At the end of his life, Abraham gave gifts to these six children and then sent them away to the “land of the east.” The Bible does not tell us what these gifts were or their value. Commentaries suggest they were sent away so that they would not contest Isaac’s stature as “Abraham’s only true heir.” Ishmael remained in Canaan. He joined Isaac at Abraham’s funeral where they buried their father together. While Ishmael is described as a “wild man,” there is no evidence of estrangement between Abraham and Ishmael. On the contrary, Ishmael is portrayed as a loyal and devoted son. Abraham was very wealthy. However, he did no estate planning.
16 BarTalk / DECEMBER 2012
Upon Sarah’s sudden and unexpected passing, Abraham was compelled to immediately purchase a burial plot. The owner of the plot, Ephron, took full advantage of Abraham’s vulnerable state. The vendor would not sell the plot on its own. Ephron insisted, as a condition of sale, that Abraham also purchase the accompanying field. Abraham paid the full retail price, 400 silver shekels. Commentators have speculated this price to be between $1.5 million and $5 million dollars in today’s currency. In the book of Kings, King Omri paid 6000 shekels for the entire territory of Samaria. According to the Code of Hammurabi, a year’s wages for a working man was between six to eight shekels per year. Abraham paid 57 times the annual working man’s salary for this plot. (By contrast, a home on Vancouver’s east side might cost 25 times an annual working man’s salary.) When Abraham died, he left his entire estate to Isaac. He left nothing to Ishmael. The six children born to Keturah also got nothing except the gifts made prior to their departure. What if Abraham had lived in British Columbia? What inheritance rights might his wife and children have against his estate?
The B.C. Wills Variation Act protects the inheritance rights of spouses and children who have been disinherited. The Act stipulates that “… if a [will maker] dies leaving a will that does not ... make adequate provision for the proper maintenance and support of the [will maker’s] spouse or children, the court may order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the [will maker’s] estate for the spouse or children.” The Supreme Court of Canada has interpreted this to mean a will maker has a legal and a moral obligation to make adequate, just and equitable provision for his spouse and his children. These duties extend not only to underaged children but also to adult children, even financially independent adult children. The Supreme Court has ruled that, in a single marriage family context, one’s primary obligation is to make adequate provision for one’s spouse. The secondary obligation is to provide for one’s children. If the estate is large enough then one must provide for both. Continued online at cba.org/BC/bartalk_11_15/12_12/guest_wenner.aspx
Richard M. Wenner practises law in Vancouver at the law firm Coric Adler Wenner. He practises in the areas of real estate, business law and wills, estates and estate planning and can be reached at rwenner@cawlaw.ca or by phone at 604-736-5500.
LETTERS CONT’D ... Continued from page 2 re: Letter from John Rogers on “A Big Challenge to the Justice System” by David Bilinsky
That brought me to Alternate Dispute Resolution (ADR) as the only rational method of resolving tech-based business disputes and a subsequent involvement with the British Columbia International Commercial Arbitration Centre. In the ’90s, in my role as Governing Trustee of the BCICAC, I was involved with other ADR practitioners in the drafting of the Centre’s current Domestic Rules. Currently, I arbitrate business disputes in the financial and technology fields as well as acting as Chair of disciplinary panels for the Investment Industry Regulatory Organization of Canada (IIROC) and serving on panels resolving disputed registrations for the Canadian Internet Registry Authority. The latter panels involve panelists from across Canada with parties similarly geographically disparate. Indeed, I am currently on a threemember panel, the Chair of which is located in Nova Scotia and the other panelist is in Toronto. The parties are from Montreal and Charlotte, PEI. The reason for prattling on about my own experience is to share with you my perspective of dealing with reasonably complicated business disputes outside of the court system. You caution in your article that if the justice system does not bring about fundamental change that “we may find that many disputes have been taken away from the justice system and are resolved by other means.” Unfortunately,
I believe that has already happened and is continuing to do so, notwithstanding the recent lecture on judicial independence delivered to the Government of British Columbia by the British Columbia judiciary. Given the confidential nature of the arbitrations, in which I am involved, I am reluctant to discuss in any detail my experience in this area. However, the IIROC disputes and the CIRA disputes are public processes. To deal firstly with the CIRA dispute process. It is entirely Internet-based, does not involve oral evidence or any form of formal hearing, and deals solely with a rather technical area – the right to use a “.ca” URL. It started out at UBC as a rather esoteric dispute resolution process, but in this day of online commerce the dispute resolution process has come to involve assets that are extremely valuable to the parties to the dispute. To contrast this process with the court process, there are strictly enforced time limits with a decision having to be rendered within 21 days of the appointment of a panel, the panel is comprised of experts in the field, and the entire process exclusive of legal fees costs the parties about $5,000. The court process could not come even close to matching these deliverables. The IIROC process more closely resembles what happens at the courthouse in that professional livelihoods are at stake. Similar to disciplinary procedures for such as the medical and legal professions, the IIROC disciplinary process is a formal process operating within defined guidelines. However, this process makes good use of technology,
especially communication technology. Instead of individual provincial registrars, the IIROC disciplinary process is administered by the National Hearing Co-ordinator operating out of Toronto. This person is charged with the responsibility for managing the five Canadian jurisdictions, including Quebec. Video conferencing is very common rather than the exception, and submissions are usually delivered in electronic form. A couple of years ago, I attended an administrative law CLE course in Vancouver, one of the topics of which was ODR. If my memory serves me correctly, I believe that one of the presenters at this course was a representative of either eBay or PayPal who communicated with the attendees by SKYPE and spoke of his company’s involvement with ODR as a desirable business strategy. At the time, I was led to believe that B.C.’s AG was moving to implement this model within British Columbia. I was therefore very pleased to see the introduction and passing of the Civil Resolution Tribunal Act. I wanted to write to you to add my experience to what I am sure you are finding coming out of the woodwork in British Columbia and to encourage you to keep such communication as you have in your column coming forward to the legal profession and to other members of the B.C. public to encourage the practise of ODR in our province and to encourage the use of the dispute resolution measures envisioned by the Civil Resolution Tribunal Act. — John Rogers, R. John Rogers & Associates DECEMBER 2012 / BarTalk 17
news&events CBA NATIONAL NEWS
New Online Home for National Magazine With a quick click of the mouse, you can now fully enjoy National magazine online! The magazine’s all-new website complements the print edition, offering thoughtprovoking videos, blogs, and up-to-date stories on the latest legal news and trends. It’s searchable, easy to browse and interactive.
Mont-Tremblant, Quebec.
Check it out at: \\
CBA NATIONAL NEWS
2013 Mid-Winter Meeting of Council in Mont-Tremblant, QC The 2013 Mid-Winter Meeting of National Council will be held at Mont-Tremblant, Quebec from February 15-17, 2013. Attendees will help shape the future of the CBA and the legal profession by participating in a roundtable discussion on the Envisioning Equal Justice initiative and voting on resolutions
www.nationalmagazine.ca
concerning current legal issues, public policy and governance. There will also be ample time to enjoy the many activities that Tremblant is famous for, and connect with your colleagues at evening social events. Learn more and register now at \\
www.cba.org/tremblant2013
CBA NATIONAL NEWS
International Development: Legal Aid Project in China Up and Running The CBA’s new project in China, Rule of Law: Legal Aid for Marginalized Groups, is now underway. Canadian lawyers are providing expert assistance to existing legal aid programs in three Chinese provinces – Yunnan, Jilin and Liaoning – to improve their
18 BarTalk / DECEMBER 2012
service to marginalized communities, particularly ethnic minorities and migrant workers. Funded by the Canadian International Development Agency (CIDA), the CBA has partnered with Legal Aid Ontario and Community Legal Education Ontario
for the project, which runs until December 2013. For more on CBA \\ international development initiatives, visit: www.cba.org/CBA/IDP/ InterDev/.
CBA NATIONAL NEWS
A2J Initiative Enters Research and Consultation Phase
Dr. Melina Buckley
The CBA’s Access to Justice initiative, Envisioning Equal Justice, has begun the first phase of its research and consultation around the six “building blocks” the Committee, led by Dr. Melina Buckley of Vancouver, believes will address current shortfalls in information. Committee members presented the first of a series of planned consultation documents at the 4th Annual Pro Bono Conference in Montreal recently. Entitled “Tension at the Border: Pro Bono and Legal Aid,” the paper (available online at j.mp/probonolegalaid) confronts several controversial issues, and the Committee hopes to receive constructive feedback over the coming months. The “building block” research and consultations will inform later phases of the project, including discussions at the national Summit on Access to Justice in Vancouver, April 25-27, 2013.
NEWS
Family of UBC Law Alumnus Donates $2M to Law School – The Second Largest Donation to UBC Law by an Individual In memory of their late husband and father, Franklin Lew, Joan and Derek Lew recently announced a $2 million donation to the Faculty of Law at UBC. The announcement was made on September 27, 2012 at the one-year anniversary celebration of Allard Hall, the law school’s new building. “My father always remembered the life-long lessons and friendships he gained here,” explained Derek, Mr. Lew’s son. “His education and experiences at UBC Law afforded him with many outstanding opportunities that shaped his
career. It’s a great privilege for us to honour him with this gift to the school, with the hopes that it will help future generations of students embrace new opportunities and achieve success.” For more information visit: \\
www.law.ubc.ca/
L-R: Dean Mary Anne Bobinski, Derek Lew and Joan Lew.
CBA NATIONAL NEWS
Opposition to Bill C-37’s Doubling of Victim Surcharges and Removal of Judges’ Discretion The CBA opposes the passage of Bill C-37, Criminal Code amendments (Increasing Offenders’ Accountability for Victims Act), as it would double the amount of victim surcharges and remove judges’ discretion regarding their imposition. “We support the use of victim surcharges as they can provide victims of crime with counseling services or help them understand the justice system and court process,” says Dan MacRury, Chair of the CBA’s National Criminal Justice Section. “We object to the doubling of the surcharges and the removal
Dan MacRury
of a judge’s discretion to waive the surcharge.” Read the CBA’s news release \\
and letter to the Standing Committee on Justice and Human Rights at: http://j.mp/billc37
DECEMBER 2012 / BarTalk 19
news&events AWARD
Vancouver Law Firm Hunter Litigation Chambers Wins Canadian Pro Bono Award The Vancouver law firm of Hunter Litigation Chambers was awarded the 2012 Canadian Pro Bono Award for a Regional Firm at the 4th National Pro Bono Conference in Montreal on November 1, 2012. Since its formation in 2006, many Hunter Litigation Chambers lawyers have consistently represented pro bono clients through Access Pro Bono and other organizations. Brent Olthuis, Greg Allen, Mark Oulton, Gib van Ert and Claire Hunter have been particularly active in APB’s Court of Appeal Program, Judicial Review Program and Civil Chambers Program. Together, they have represented many indigent clients and have developed important jurisprudence for the advancement of marginalized individuals. In honour of Hunter Litigation Chambers’ exemplary pro bono efforts, former United Nations Deputy Secretary General Louise Fréchette presented the Award to Claire Hunter at the Conference Banquet and Awards Ceremony.
EVENT RECAP
Campbell River Bar Association and CBABC Annual Pig Roast You’ve heard about it – now here is the proof! Grant Currie and the Campbell River Bar Association hosted judges, lawyers and their families from Nanaimo County on a beautiful sunny day on July 28 for the Annual Pig Roast. Jim Hormoth and Grant roasted, smoked and basted the pig for seven hours providing the 40+ in attendance with a delicious dinner in a beautiful location overlooking Quadra Island. President-elect Kerry Simmons encourages all lawyers to make this event a “must do” in 2013. NEWS
CLEBC Update CLEBC explores the Family Law Act for you This season, CLEBC shines a spotlight on the new Family Law Act. The changes it brings are significant. With CLEBC’s expert faculty, we explore the pitfalls and possibilities for your legal practice. CLEBC’s flagship events – twoday conferences in Vancouver, Victoria and Kelowna – start January 31. Called The Family Law Act: Everything You
20 BarTalk / DECEMBER 2012
Always Wanted To Know But Were Afraid To Ask, these indepth conferences feature out-ofcourt resolution, family violence screening, and detailed sessions on property and the care of children. Please book early, as these conferences fill up fast. If you can’t attend in person, CLEBC offers the Vancouver conference via live webinar and rebroadcasts. CLEBC’s one-day conferences in February for legal support staff also take place in Vancouver, Victoria and Kelowna. In early 2013, CLEBC offers specialized training for mediators, arbitrators and parenting
co-ordinators – roles with increased activity under the new legislation. CLEBC’s Family Law Act Transition Guide is available now in both hard copy and online editions. It provides a comprehensive summary of the changes, along with key annotations, exact text and associated regulations. CLEBC hopes the selection of publications and programs meets the needs of everyone in the profession. For further information, go to www.cle.bc.ca.
B.C. legislative update
Acts In Force Current from August 15 to October 23, 2012 Legislative Update is provided as part of the CBABC legislative and law reform program. It is a service funded by CBA membership fees, and is, therefore, provided as a benefit of CBA membership. The full version of Legislative Update is now only published online and available to CBA members exclusively at www.cba.org/bc. ATTORNEY GENERAL AND PUBLIC SAFETY AND SOLICITOR GENERAL STATUTES AMENDMENT ACT, 2011, S.B.C. 2012, C. 6 (BILL 15) Section 2(a) is in force September 30, 2012 BUDGET MEASURES IMPLEMENTATION ACT, 2012, S.B.C. 2012, C. 8 (BILL 21) Sections 50, 53 to 56 and 93 are in force October 1, 2012 CRIMINAL ASSET MANAGEMENT ACT, S.B.C. 2012, C. 10 (BILL 28) Act is in force September 30, 2012 FAMILY LAW ACT, S.B.C. 2011, C. 25 (BILL 16) Sections 377 to 380 are repealed March 18, 2013 FINANCE STATUTES AMENDMENT ACT, 2012, S.B.C. 2012, C. 12 (BILL 23) Sections 1(b), 7, 17 to 32, 33(b), 36, 37(a) to (g), 38 to 44 and 48 to 72 are in force November 1, 2012 FORESTS, LANDS AND NATURAL RESOURCE OPERATIONS STATUTES AMENDMENT ACT, 2012, S.B.C. 20012, C. 14 (BILL 26) Section 2 is in force September 26, 2012 INSURANCE ACT, S.B.C. 2012, C. 37 Section 155 is in force March 18, 2013 JUSTICE STATUTES AMENDMENT ACT, 2012, S.B.C. 2012, C. 11 (BILL 33) Section 5 b) is in force July 19, 2012 LIMITATION ACT, S.B.C. 2012, C. 13 (BILL 34) Sections 1 to 40, 43, 44, 45(b) and 46 are in force June 1, 2013 MISCELLANEOUS STATUTES AMENDMENT ACT (No. 2), 2011, S.B.C. 2011, C. 13 (BILL 13) Sections 12 to 30 are in force February 1, 2013
branch & bar
Calendar
DECEMBER
1 Provincial Council 1 CBABC Annual General Meeting 6 CBABC PD Webinar/In-Person: Managing the Risks and Benefits of Technology in the Practice of Law 7 LAP: Overcoming Procrastination 7 LAP: Boundaries for Lawyers
JANUARY 10 CBABC PD Webinar/In-Person: Managing Client Relationships 15 CBABC PD Webinar/In-Person: iPad+Lawyer = New Equation for Tech Success
Congratulations! call ceremony Call ceremonies are an important rite of passage for new lawyers, one they want to celebrate with family, friends and colleagues. Left photo – Patricia Blair’s call ceremony, left to right: Mr. Justice Bracken, Madam Registrar Colleen Tomlin, new lawyer Patricia Blair, Victoria Bencher Kathryn Berge, QC, CBABC President Kerry Simmons, Cowichan Valley Bar Association President Eric Wagner.
Georges A. Goyer, QC Memorial Award for Distinguished Service The B.C. Branch of the Canadian Bar Association awarded an outstanding B.C. lawyer at the 2012 Annual Bench and Bar Dinner where members of the legal community gathered to celebrate the profession and recognize outstanding individuals. Right photo (L-R): M. Joyce DeWitt-Van Oosten, QC was bestowed the CBABC’s highest honour – the Georges A. Goyer, QC Memorial Award presented by B.C. Branch President, Kerry L. Simmons. The annual Georges A. Goyer, QC Memorial Award was created in 1992 to recognize exceptional contributions to the legal profession, to jurisprudence, or to the law in British Columbia. The award was established in memory of Georges A. Goyer, QC, a respected member of the B.C. Branch, who passed away after a courageous battle with cancer.
To read more, go to: www.cba.org/BC/Public_Media/goyer/2012.aspx \\ DECEMBER 2012 / BarTalk 21
news&events EVENT RECAP
Nanaimo Battle of the Lawyers’ Bar Bands The 5th annual Nanaimo Battle of the Lawyers’ Bar Bands, held on September 29, 2012, was a huge success, raising money in support of the Lawyer’s Benevolent Fund. While the bands were all excellent, the 1st place honour was awarded to the talented TBA! They had Ian Perry (11) and Sasha the dance floor packed from start to finFarenholtz (11) of TBA. ish with hits from the Tragically Hip and Led Zeppelin and the crowd chanted for an encore. Despite not technically qualifying as an entry due to their ages, Ian Perry (11), Tasha Adams (15) and Sasha Farenholtz (11) earned the trophy. Father of the drummer, local Nanaimo Federal Crown Prosecutor, James Farenholtz, could not have been more proud. Chief Justice Lance Finch attended and enjoyed an evening of great music.
TRIVIA QUESTION What is the location of where Rebeka and Tero are walking on the cover of the October 2012 issue of BarTalk? Send your answers to bartalk@bccba.org. We will publish the correct answer in the next issue.
Court of Appeal Criminal Practice Directive The Court of Appeal has amended its Criminal Practice Directive concerning the procedure to follow on Mental Disorder Appeals pursuant to s. 672.72 of the Criminal Code. For more info, go to: \\ www.courts.gov.bc.ca/court_ of_appeal/practice_and_procedure/criminal_practice_directives_/Criminal-Mental%20 Disorder%20Appeals.htm.
CALL FOR SUBMISSIONS BarTalk is running another feature on What Lawyers Do in the Community and Abroad (see June 2012 issue). If you have a submission, send a high-resolution colour photo and a 100-word description of what you have done in the community and/or abroad to bartalk@bccba.org.
EVENT RECAP
2012 Mentoring Receptions at UBC, UVic and TRU
Left UBC photo (L-R): Caitlin Ohama-Darcus – CBA Financial Services Corporation Law School Achievement Award recipient; Flora Vineberg – CBABC Entrance Award recipient; and Sarah Chung – CBABC Entrance Award recipient. Middle UVic photo (L-R): Shannon Mather – CBA Young Lawyers Representative for Victoria; Victoria More – CBABC Entrance Award recipient; Catherine Bright – CBA Financial Services Corporation Law School Achievement Award recipient; and Kerry L. Simmons – CBABC President. Right TRU photo (L-R): Dean Chris Axworthy – TRU Faculty of Law; Alina Morrissey – CBABC Entrance Award recipient; and Kerry L. Simmons – CBABC President.
22 BarTalk / DECEMBER 2012
announcements Law Foundation of British Columbia
Large Projects Initiative 2013
New Law Foundation Website
The Law Foundation invites applications to the Large Projects 2013 Fund. Eligible applicants are non-profit organizations in British Columbia whose proposed timelimited project falls within one or more of the five statutory mandated areas of the Law Foundation: legal aid; legal education; legal research; law reform; and law libraries. The Foundation encourages applicants and projects that reflect the diversity of British Columbia. Grants can be made in amounts up to $75,000. For more information about the Large Projects Initiative (areas of encouragement, grant size, and application process) consult the Law Foundation website at www.lawfoundationbc.org under the “Funding Available/Large Projects” tab or call 604-688-2337. The deadline for applications will be in February 2013.
Reminder: Law Foundation of British Columbia Graduate Fellowships 2013/2014 The Law Foundation of British Columbia has updated and redesigned its website. The goal of the redesign was to further meet the needs of the Foundation’s grantees, the profession, and the public of British Columbia. This new site makes information about the Foundation accessible, provides current information about grant cycles, and highlights Law Foundation funded groups in British Columbia. This new site is a key tool in the Law Foundation’s work, which is guided by its mission statement: “To advance and promote a just society governed by the rule of law, through leadership, innovation and collaboration.” Please make sure you visit the Foundation’s site at www.lawfoundationbc.org.
As noted in the last issue, the Law Foundation also has up to five (5) Awards of $13,750 each (subject to change) available in 2013. All applications and supporting material must be received at the Law Foundation offices by January 4, 2013. Late or incomplete applications will not be considered. Applications may be submitted by mail, courier or fax, but not electronically. For more information, contact the Law Foundation (1340 - 605 Robson Street, Vancouver, B.C. V6B 5J3 / Phone 604-688-4418 / website www.lawfoundationbc.org under “Funding Available/Graduate Fellowships”).
DECEMBER 2012 / BarTalk 23
professionaldevelopment email: PD@bccba.org
WEBSITE: CBA.ORG/PD \\
CBABC courses are designed to meet the needs of lawyers while still maintaining the opportunity to network, advance one’s career, practice and business. CBABC prides itself in bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management component for 2012 Law Society of British Columbia reporting.
In partnership with the Kelowna Bar Association
Upcoming Courses
Planning for Risk and Succession
Business Skills for Lawyers Series The Business Skills for Lawyers Webinar Series delivers practical content focused on practice management, professional ethics and topics addressing various aspects of the business of practising law. The series as a whole is designed to provide participants with a foundation of knowledge, practical strategies and resource materials addressing various aspects of management of a legal services firm. Each webinar will be delivered by a knowledgeable panel of two speakers and a moderator. The series is structured so that participants can elect to complete the entire series, or select only the sessions that best suit their individual needs and interests.
Date: December 12, 2012 Location: Royal Anne Hotel, Kelowna
Save The Date Watch for Registration Information for these new courses “iPad +Lawyer= New Equation for Tech Success” Webinar Upcoming Courses in This Series December 6, 2012: Managing the Risks and Benefits of Technology in the Practice of Law January 10, 2013: Managing Client Relationships February 7, 2013: Negotiation in the Business of Law March 7, 2013: Project Management Part 1: Principles of Project Management April 11, 2013: Project Management Part 2: Project Management in Practice
Date: January 15, 2013
“How to Prepare for the New Limitation Act” Webinar Date: January 30, 2013
Upcoming Webinar Plan, Prepare & Pack – Practical Tips on Your Next Law Office Move
Date: February 20, 2013 Speakers: A. John Lakes, Lakes, Whyte LLP and Tako J. van Popta, McQuarrie Hunter LLP
REMINDER
Continuing Professional Development (CPD) Hours Complete your 12 hours of continuing professional development (CPD) by Dec. 31, 2012. At least two of the 12 hours must pertain to any combination of professional responsibility and ethics, client care and relations, and practice management. FEEDBACK
Here’s What Our Recent Webinar Participants Had to Say “Practical examples provide insight into the principles.” – Ethical Dilemmas for Corporate Counsel and Public Sector Lawyers, June 20 “My compliments to the lawyer and the business coach. They were well prepared, thorough and really on point. I’d have to say this was one of my most useful webinars.” – Negotiating for Litigators, September 26 From @cindyzheng on Twitter: “@CBA_BC Thanks for putting on the webinar on mental capacity. Estate planning and litigation can be quite complicated! Learned lots.” – Mental Capacity and Legal Obligations, October 24
\\ For a complete list of registration details and requirements, please contact the Professional Development
Department 604-646-7866 or 1-888-687-3404 ext. 329 or email pd@bccba.org.
24 BarTalk / DECEMBER 2012
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memberservices email: MEMBERS@bccba.org
Seasonal promotions and special offers to members are promoted weekly via CBABC News and Jobs. Visit the CBABC website for links to various activities and promotions on the Member Savings page from the drop down list under Membership. BCLMA/CBABC SUPPORT STAFF COMPENSATION SURVEY – The results are available for purchase by \\
contacting us at members@bccba.org. Stay competitive and know your market!
PNE SPECIAL EVENTS – Just in time for the holidays Cirque Du Soleil: Amaluna November 23 to \\ December 9, 2012 and Magic of Santa December 21-23, 2012. CBA members receive discounts when group purchases are made online. Visit the Member Savings page for details.
DECEMBER 2012 / BarTalk 25
barmoves Who’s Moving Where and When Caitlin Mason
Carman J. Overholt, QC
has recently joined Devlin Gailus, a full service Aboriginal law firm offering litigation, negotiation, and business services to clients across Western Canada.
has resigned from FMC to establish Overholt Law in downtown Vancouver. Carman will continue his practice in Employment, Labour Relations and Commercial Litigation.
Ryan Morasiewicz
Robert I. Parsons
has become a partner in Miller Thomson LLP’s Vancouver office. Ryan’s practice is focussed on insurance defence litigation and health law.
has joined Koffman Kalef LLP Banking & Insolvency group. Robert articled at Koffman Kalef LLP and was called to the B.C. Bar on August 23, 2012.
Faizal Nuraney
Heather L. Jones
has recently commenced articles at Koffman Kalef LLP. He completed his J.D. at Dalhousie University and will be called to the B.C. Bar in late 2013.
has joined Sager Legal Advisors LLP as a partner. Her practice focuses upon commercial litigation, risk management, construction, real estate and municipal matters.
Chris Bolan
Jennifer MacGregor-Greer
after 12 years with the Law Society of British Columbia, Chris has joined the Vancouver law firm Armstrong Simpson, as litigation counsel. Chris will be practising in the areas of commercial and professional liability litigation.
has joined Kornfeld LLP as a senior associate. Jennifer’s practice includes advising with respect to mergers and acquisitions, corporate reorganizations, joint ventures, corporate governance and securities compliance matters.
Fiona M. Beveridge
Nicole Byres
has joined Watson Goepel LLP as an associate. Fiona practises in the area of family law.
has joined Miller Thomson LLP’s Vancouver office. Nicole Byres’ practice focuses on employment law, corporate governance and labour law.
26 BarTalk / DECEMBER 2012
newmembers Space is at a premium and available on a first-come first-serveD basis so send your Bar Move (max. 30 words) and photo to CBA@BCcba.org now. FOR MORE BAR MOVES GO TO BARTALK ONLINE
Valerie Dixon has joined Miller Thomson LLP’s Vancouver office. Valerie Dixon is a litigator practising labour & employment law.
September & October 2012 Regular Member
Daniel C. Bertrand
Thomas R. Bell
Colleen E. Brown
Leo Chen
Clayton Burrill
McGrady & Company Vancouver
Clark Wilson LLP Vancouver
Pomeroy & Gentles Fort St. John Upper Skeena Counselling & Legal Assistance Society Hazelton
Sager LLP West Vancouver Heather Cochran
Christine Murray started the partnership of Cassels Murray with Lynda Cassels on November 19, 2012. Christine’s practice focuses on family law.
Hunter Litigation Chambers Vancouver
Kimberley A. Fenwick
Jordan R. Helm
Miller Thomson LLP Vancouver
Harper Grey LLP Vancouver Andrea Girardin
Helm Legal Victoria
Michael Hamata
Colby Gordon Johnson
Davis LLP Vancouver
Martin Johnson Law Corporation Kelowna
Jeffrey T. Hamel
Davis LLP Vancouver
Michael D.E Lefebure
Lynda Cassels started the partnership of Cassels Murray on November 19, 2012 with Christine Murray. Lynda’s practice focuses on family and estates law.
G. Jack Harris, QC Law Corporation Abbotsford
Gavin Hoekstra
Davis LLP Vancouver
Taylor Little
Stikeman Elliott LLP Vancouver
Geoffrey Huggett
Sara Pedlow
Elle F. Lecocq
Bull, Housser & Tupper LLP Vancouver
Burns, Fitzpatrick, Rogers & Schwartz & Turner LLP Vancouver
McCarthy Tétrault LLP Vancouver Awesta Masshoor
Landmark Law Group Vancouver
Jamie Porciuncula
Daniel Kwong has joined the immigration practice of Larlee Rosenberg as an associate. Daniel recently moved to Vancouver from Toronto where he practised immigration law since 2004. His current practice focuses on business immigration.
Thomas Ciz has joined Miller Titerle LLP and will be providing taxation advisory and litigation services to the firm’s clients.
Hamilton Duncan Armstrong & Stewart Law Corporation Surrey
Christopher Munroe
Gowling Lafleur Henderson LLP Vancouver
Madeleine K. Rodgers
Curtis D.A. Ronning
HighStreet Accomodations Ltd. Vancouver
Alexander Holburn Beaudin + Lang LLP Vancouver Julia Winters
Articling Students
Gowling Lafleur Henderson LLP Vancouver
Rahul Aggarwal
Jonathan Wright
Quay Law Centre New Westminster
Bull, Housser & Tupper LLP Vancouver
Elizabeth Allan
Bull, Housser & Tupper LLP Vancouver Jefferey Bastien
Fraser Milner Casgrain LLP Vancouver
To view all new \\ members, including Law Students, please visit www.cba.org/bc/
bartalk_11_15/12_12/ membership.aspx.
DECEMBER 2012 / BarTalk 27
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