I had contemplated (and really did plan on) tackling the ins and outs of the pending new Supreme Court Rules dealing with oral examinations, but on this Christmas Eve Day, the topic just doesn’t feel ‘topical’. Instead I came across an article from yesterday’s Edmonton Journal with the headline, “Family court crowded at Christmas: Parents look to sort out holiday schedules,” that had resonance. As Alexandra Zabjek writes, “It is an annual rush. Every year, family courts experience a surge of cases in the days leading up to the holidays.” I know that unfortunate story. As a family law paralegal, what I often fear about the Christmas Season is facing that ‘annual rush’, the possibility of moms and dads trying to secure Christmas access. Despite the outcomes of such disputes, feelings of disappointment, guilt and loss are felt inevitably by parents and children alike. The old adage that “no one wins” seems never so true.

Whether we spend more or less than last year on gifts for family and friends is less significant than the expectation that the holiday season will bring family and friends closer together. We have been inculcated with the message that Christmas is all about peace, happiness and love. Sadly, that expectation creates heightened challenges and distress for the separated or divorced family, especially if arrangements for access over the holidays were not made well in advance. Even when parents have an existing access agreement or order in place, that is no guarantee disputes between them will not materialize, perhaps because the children themselves would rather spend Christmas Day with the ‘other parent’.

I have hope that this holiday season will be a quiet one – so far so good. If I could make it so for everyone, of course I most certainly would.

So should I close off by wishing all of you a Happy, Peaceful Holiday Season? Sure, I just can’t help myself!

Mediation is particularly well-suited for estate disputes because it provides for the consideration of factors outside the adversarial arena. Very often in estate disputes there is a multiplicity of interests and motivations.  Mediation provides a forum to not only identify those interests and motivations, but to respond to them.  When a dispute arises in the family context, mediation allows for consideration of the factors that might contribute to the dispute or interfere with its resolution.  For example, family dynamics, suspicion of abuse or undue influence, blended families with opposing views on testamentary entitlement, and interpretation of the testator’s, donor’s or settlor’s wishes can be more effectively considered in the mediation context than during the course of litigation.

Where family is involved, there is often a natural reticence towards litigation.  While the disputants want the opportunity to settle their disputes behind closed doors, they often need the assistance of a neutral third party to reach an appropriate resolution.  Mediation allows for the leveling of the playing field because each party has a voice and can participate in the process.  Each party has the right to have counsel present and the ability to influence the discussion and eventual outcome.  If there is a desire to repair relationships, mediation provides an opportunity for this reparation.  Parties can more readily move from a position-based stance to an interest-based stance.  It is possible that, once the discussion moves to one of interest, the parties will discover that they have common interests that can be brought to bear in resolving the dispute.

It is interesting to note that of the 31 millions people currently residing in Canada, 12.5% (3.9 million) are age 65 or older.  By 2040, it is predicted that 25% of Canadians will be over 65.  While there are currently only 150,000 people in Canada over 90 years of age, by 2026, there will be 400,000.  We are living longer and accumulating greater wealth.  This gives rise to the potential for even more disputes arising on either incapacity or death.  Mediation will be an important tool in resolving some of these disputes, including, but not limited to:

• challenges to the validity of a will (e.g. , preparation, execution or interpretation of a will, capacity to make a will, holograph wills, and will kits);
• personal injury claims (where the incapable or deceased person is injured or causes a third party injury);
• discrimination claims (including age and disability discrimination, and accessibility rights);
• elder abuse claims (including physical, psychological and financial claims, and civil and criminal remedies);
• dependants’ relief claims (where the deceased or incapable person is either the dependant or the provider);
• parental support claims (where the parent is in need and the child is capable of providing assistance);
• variation of trusts (the terms of any proposed variation, subject to court approval);
• grandparent access claims;
• long-term care issues (including consent to treatment and admission);
• power of attorney disputes (including capacity, and use and abuse issues);
• guardianship plans;
• access to health care issues; and
• housing issues (including tenancy issues, house-sharing arrangements and assisted living).

Find out more about our mediation services here.

Capilano Golf & Country Club
420 Southborough Drive
West Vancouver, BC

RSVP: Susan Schweighardt 778-786-0615 ext. 112 or susan@bcheritagelaw.com

CLE-TV – Going Out On Your Own – Live Webcast

Tuesday, January 12, 2010
Location: Online
12:00 pm – 1:00 pm

Who should attend: All lawyers.

Learning level: All levels

Is setting up a practice for you? Hear from two who have done it successfully and can share their knowledge and experience – both good and bad – with you.

* planning for success
* setting up your office
* marketing
* client relations
* managing money
* future trends

This course is one of CLEBC’s NEW CLE–TV programs, one-hour online courses with live video streaming. These one-hour, lunch time programs are delivered live from our CLE–TV studio. Most programs have an interview format, with plenty of opportunities to ask questions of the presenters through text chat.

Law Society of BC CPD Hours: 1 hour (also qualifies for professional responsibility and ethics, client care and relations, and/or practice management credit)

Course Host
Nicole L. Garton-Jones — Heritage Law, West Vancouver

Course Guest
R. Trevor Todd — R. Trevor Todd Law Corporation, Vancouver

Pricing
EARLY BIRD (Register by December 29, 2009 and SAVE)
Live Webcast: $85

The Vancouver Club
915 West Hastings Street, Vancouver, BC

Wondering why the old law firm practice model isn’t working so well for the younger generation in particular?

Looking for both economic success and long term talent retention?

Hear about three real-life BC examples of new approaches to law firm management that provide win-win-wins for law firms, lawyers and clients. Nicole Garton-Jones of Heritage Law (Nominee for Work Life Balance Award, 2008), Ashleigh Baylis of Pushor Mitchell (Winner of Work Life Balance Award, 2009) and Scott Stanley of Murphy, Battista (Nominee for Work Life Balance Award, 2008) will present three new models for increasing both productivity and retention.

The new rules of civil procedure in British Columbia will come into effect on July 1, 2010.   One of the changes will be to restrict the use of written interrogatories.

Under the old rules, Rule 29 allowed any party to serve questions in written form on another party to the lawsuit. This is a useful tool in matrimonial litigation, especially where you have uncooperative former spouses who refuse to provide documents or answer questions through the usual course of letters to opposing counsel.  Under Rule 29, the party asked to answer the interrogatories could object to specific questions, or bring an application to court to strike the interrogatories for example, but generally speaking, asking questions through Interrogatories is an effective means of gathering information and evidence in family law matters.

By submitting questions concerning a party’s financial records and making requests for documents within the interrogatory, the other party has an opportunity to go through his or her records, and review the questions and answers with his or her lawyer, which ensures accuracy of the response, and allows the asking party to rely on the answer as it forms part of the written evidence.   These written answers are much more useful and inexpensive to obtain, than setting the matter for hearing and asking the same questions during oral examinations, where the other party often does not know the answers off-the-top of his or her head or will not answer.  In written form and guided by counsel, more often than not, answers are provided within the timelines.

Under the new Rule 7-3, a party who wishes to examine another by written interrogatories must first get the other party’s agreement, or they have to apply to court and ask the court to allow the interrogatories.

This change in the Rules is unfortunate, and in my view, will have the opposite effect of what is intended. Instead of reducing the costs of family law litigation, in most cases it will increase the costs, since under the new rules, if the former spouse does not agree to answer interrogatories, you may be able to get a court order allowing interrogatories but it is an extra step, which adds to the expense for the client.