Calgary Family Lawyer Charles Fair discusses the financial side of separation and divorce. Do you know what is taken into consideration when you are going through a divorce or separation? How is spousal and/or child support calculated? What is matrimonial property?
Charles Fair has been practicing law for nearly 30 years and founded Fair Legal because he is passionate about helping others, ensuring their rights are protected and that they are treated fairly. Fair Legal deals with Criminal, Family, and Civil Litigation matters.
Partnered with the Canadian Centre for Men and Families, Fair Legal provides monthly webinars on topics dealing with criminal or family matters.
WATCH: Boost Your Family Law Literacy
Calgary Men's Divorce Rights Lawyer Charles Fair
Canada’s divorce and family laws are governed by federal and provincial laws. Family lawyers represent their clients in court and negotiate disputes between spouses and family members. Charles Fair has been practicing Divorce and Family Law for almost 30 years. Fair Legal handles all types of divorce, custody and family legal matters to protect your children, property and you. Contact us at 1 (403) 239-2249 to schedule a confidential meeting with a member of our legal team.
Give me a call and I can put my years of experience in divorce and family law to work for you.
Fair Legal Webinar - Boost Your Financial Literacy
Vanessa Farkas-Brahmakshatriya: Good evening, everybody. My name is Vanessa Farkas-Brahmakshatriya. I volunteer with the Canadian Center for Men and Families, Alberta, and I'm very pleased to introduce Charles Fair of Fair Legal, back for another exciting educational offering in the family law field. Charles has been practicing law for nearly 30 years and founded Fair Legal because he's passionate about helping others, ensuring that their rights are protected, and that they're treated fairly. Fair Legal deals with criminal, family and civil litigation matters.
Charles is generously volunteering his time with CCMF Alberta to deliver monthly webinars on topics of common concern to the population that we aim to serve. Specifically, men struggling due to intimate relationship breakdown and turmoil. Here at CCMF Alberta, we are committed to meeting men where they're at, so they can feel heard and validated, and have conversations that matter to them.
We help equip men to manage stressful situations, rebuild their lives after relationships fail, and stay connected with children. We recognize that providing mental health support for men leads to optimal parenting outcomes, a reduction in family violence, and lower rates of suicide.
This is an educational offering. It's not legal advice. And it's also not therapy. Please be respectful. If you want to access additional supports in the form of individual or group peer support, trauma recovery, counseling, or other legal education programs like this one, please visit our website at CCMFAlberta.ca. And please also look out for a short customer satisfaction survey in your email inbox at 8.15. We're always working to deliver the best content we can that meets you where you're at.
There will be a question period at the end of the presentation. Please send your questions via the chat to Melanie Seneviratne, who is here as Charles' assistant. She'll be fielding the questions.
And please be advised, this webinar is being recorded.
So over to you, Charles.
Charles Fair: Great. Thank you, Vanessa. It really is an honor to be working with the Canadian Center for Men and Families. You guys do great work and I like the perspective that really identifies that men do have different needs that arise out of the breakdown of intimate relationships.
I wanted to, start off with - there we go. Okay, so here's my first slide. We had a large number of registrations for this session tonight. And it really struck me because I would've thought, well, gosh, why do people want to, like, sign up and just hear a bunch of definitions of terms and - not that I'm just gonna recite a whole bunch of definitions or anything like that - but it seems like people are really desperate to understand what it is that the legal system is really doing, because, after all, it really does impact a lot of our lives. And, if we don't know what's going on, that can be a really scary process. And I realize that this is a really important topic, even though it may seem like just a very basic topic.
So, I wanted to point out this quote from a really good book that I've read recently. I think it was published just this year by Joel Trachtman, "The Tools of Argument: How the Best Lawyers Think, Argue, and Win". And he points out that these tools of argument are too valuable to be left solely in the hands of lawyers. I'm not gonna be getting too much, tonight, into the tools of argument, but, the tools of argument are used in the legal context, and so understanding how lawyers talk about stuff, and how the courts talk about stuff - some of that literacy stuff - really does help, I think, in terms of getting a better understanding of what the process is about.
Okay, so, starting point is Lady Justice. And I wanna just point out here something, that justice is more about process than results. And, you'll see here, there's three features about Lady Justice that are important. One is that there's these scales of justice, and that is that the process of justice is about weighing the facts and the law on various sides of an argument. And the lady is blindfolded. The lady is not always blindfolded, and what started out as a parody that said something like the "Lady Justice is blind to the injustice that's going on before her" eventually got twisted and turned around to "Lady Justice is blind to the people that come before her for a decision, that it doesn't matter how wealthy you are or how well you're dressed or anything like that justice is supposed to be blind." and then this sword is ultimately because the justice system is authoritative and makes decisions that really do have an effect on people's lives.
So here's some defining features about our legal system. And the first is that it's an adversarial process, and that is be between opposing parties or sides.
The judge is there to make a decision about a particular case based on the positions and the evidence that are put forward by those parties. And so, preserving that adversarial nature of it is very important because that's how the court comes to a decision as to what is the right decision.
Adversarial is really not about, this is an ugly conflict or anything like that, although it may feel like that, it's not an emotional term, it's just simply an indication that things are opposite.
And so we talk about opposing parties or opposing sides. We talk about opposing counsel. You may see that in lawyers' bills or reporting letters, "Oh, I talked to opposing counsel." And that's often because we're trying to take some of that emotion out of it, but we are still talking about people who are adverse to our interests. Or to our client's interests.
Secondly, both facts and law are important. And that is because we wanna have some kind of consistency. We have basic principles or laws that govern the way things should be. And we think that fundamentally it's only fair if that law is applied in the same way to similar facts. And so the court is always having to deal with the facts and the law. And a lot of what happens then is about fairness. Making sure that the judge or other decision-maker is hearing the facts and the law from all sides, or from both sides if there's just two sides.
And then, lastly, I pointed out that it's authoritative. And the idea here is that once a court makes a decision, you know, unless there's some part of the decision that is to be appealed, the notion is that we are to accept the decision of the court and abide by it. Because otherwise we just end up with chaos. And so it's really a civilized process that's designed to come up with a resolution.
So the goal is, in fact, dispute resolution. When disputes arise, as they always will, we resolve the dispute by restoring or redefining the relationship between people, regarding money and property children, personal safety. And litigation, there's another word, is the processes we use to resolve disputes. And obviously the main way is we go ask a judge to make a decision in court. In Alberta, we've got two main courts, a Provincial Court and, since we're mainly talking about family law today, is the Provincial Court (Family), and there's also the Court of Kings Bench of Alberta, used to be called the Court of Queen's Bench but, with the Queen's recent passing, the name of the court has changed.
And I've listed these two other courts here because they're important. The Court of Appeal of Alberta is where you go to if there's something wrong with the decision in the Court of Kings Bench. And if the Court of Appeal gets it wrong, then you can appeal to the Supreme Court of Canada.
As I said, there are other courts, but they deal with other matters, other than family life.
Now, there is alternative dispute resolution. And I'm gonna first talk about alternatives using lawyers. And this is kind of an end-to-end description. You know, you can go hire a lawyer, and the lawyer writes a demand letter, and that might be the end of it. The situation is resolved.
And so, you know, people think of demand letters as threatening. I don't think that they ought to be threatening. I think threats actually weaken the value of a demand letter. And if you get too complicated in your demand, then it actually reduces the persuasiveness of the demand. Anyways, there's lots of things to talk about that.
Lawyers can also assist by having settlement conferences. We talk about those as four-ways, or sometimes two-way conferences, where the lawyers get together, we have a discussion without the clients. We get the clients in the room and we call it a four-way settlement conference. That's some more jargon there, but the idea is to figure out what the facts are, what the applicable law is, and come to an agreement that resolves a dispute. And lawyers are supposed to know what the law is and how the law gets applied to facts. And that's why this can be a very useful way to resolve disputes.
And then there's another way to do this, and this is called collaborative law, where the lawyers and the clients sign on to a process that says if they can't resolve the dispute, then neither lawyer can continue to act for their client and, so, the pressure there is to settle the case using the lawyers, and if they can't settle it, then both clients have to get new lawyers if they want to go to court.
I don't particularly like collaborative law. I like practicing collaboratively because it can reach settlement efficiently. But collaborative law, I think, puts the client and their own lawyer too much at a conflict of interest because of that pressure that you have to reach a settlement, otherwise you're off the file. And I think that court should always be an option if the other side is taking a position that is quite unreasonable. I'm not trying to be a naysayer about collaborative law, it's just, I don't practice it myself, even though I do like to practice collaboratively.
And I don't think that it's appropriate in all cases. Where there's significant power imbalances or significant differences in resources available, or where you suspect that one party is just going to engage in gameplaying, collaborative law is probably not a good option.
I'm gonna throw in here independent legal advice or ILA. Whenever an agreement is reached without lawyers, or when only one lawyer is involved, the other party needs to get independent legal advice. When it comes to property matters, that ILA, or independent legal advice, is required in order to make sure that the agreement is binding.
Now we can also use neutral third parties to resolve disputes. And an important one is mediation. I'm actually a trained mediator myself. Mediation is ultimately - a mediator is a third party who has some skill in helping the parties come to an agreement. And there are different kinds of mediation or mediators. Some will be more directive in the sense that they'll say to the clients, "look, you know, if you don't come to an agreement, this is what's likely to happen in court." There are other mediators that are good at helping the parties find common ground and, thus, resolve the disputes that way. And other mediators are good at coming up with creative solutions that maybe neither party was able to reach on their own. So mediation is an alternative to going to court.
Arbitration is more like court than mediation. Again, there's a third party, and that third party is tasked with deciding the case based on the facts and the law. The advantage of an arbitration is that it is - or can be - a quicker process than going to court. The procedures and rules can be defined by the parties, or their lawyers to simplify the process in a way that isn't always possible when trying to resolve things through the courts.
And then there's a hybrid system called mediation arbitration which is, you have the same third party helping to reach a decision. So they try to get the parties to reach an agreement that everybody agrees to, and then, if they can't reach an agreement, that person then can turn around and just simply make a decision.
I think, this model, you have to be very careful about how you approach mediation arbitration, or "Med Arb" as it's called, because, in mediation, you want the parties to be free to discuss anything about the case and be open about the strengths and weaknesses of their case because that's partly how you reach an agreement.
Everything that goes on in the mediation is confidential and can't be used in court or outside the mediation process and so you wanna be able to have a a proper discussion. But if you know that the third party that you've got sitting there as the mediator is gonna turn around and make a decision, that's going to influence how willing you are to discuss the weaknesses of your own case.
So mediation arbitration, or Med Arb, is something that is out there. I think it needs to be approached very carefully.
Another kind of mediation is parenting coordination, and that's where you have somebody who's a specialist in just dealing with decision-making regarding children. And, again, there's a variety of approaches. The parenting coordinator can be one who can really push the parties to reach an agreement on how the parenting should happen. The parenting coordinator can come up with creative solutions. The parenting coordinator can engage in ways of - again, push the parties to get to an agreement by saying, "look, you know, if this has to go to court, this is gonna be very bad for both you and the children." The other kind of parenting coordination really helps the parties come to their own agreement. Much like a mediator. Parenting coordination is often done in conjunction with the courts. And sometimes a parenting coordinator has the authority to make a decision and that may or may not always be a good thing. So parenting coordination is another way of resolving disputes.
So, let's get into some nitty gritty there. This is court processes. How we tell the court what the dispute is about. And this is really how the ball gets rolling. And it always starts with what we call pleadings. The pleadings, in the Court of King's Bench, are the Statement of Claim. In a family law matter, it's gonna be a Statement of Claim. For divorce, maybe a Statement of Claim for Divorce and Division of Family Property. It might also be a family law claim. Then there's a Statement of Defense and a Counterclaim. And each one of these documents sets out what the facts are, but not what the evidence is to prove the facts. The basic thing is, you know, what are the facts? What are the claims? What, what remedy does each party want?
And, similar to pleadings, is an application, and a cross-application. So an application is you, instead of going through a Statement of Claim process, you set out, you get into court much quicker with an application. And that's with affidavit evidence in support of your application. The other party can bring a cross-application as well.
Other ways that we can tell the court what the dispute about is about, is briefs, concise letters, case summaries. These are used in different processes, but I just wanted to put it out there that if you hear about these terms, that they're really just about telling the court what the dispute is about. Telling the court what the facts are, what the lawyer, or the party, thinks the law should be, or how the law should be applied to those facts.
And there's, sometimes, very strict formats that these documents have. Sometimes the format is not as strict. Ultimately, the point is we're just trying to tell the judge what's going on.
Now, getting to the facts of the case. This is where we have - there's various processes here. So, a very common one is affidavits. This is a sworn statement where the person signing the affidavit is swearing that the statements that they've made in the affidavit are true. There are other kinds of sworn statements, like statutory declarations. Sometimes, the court document - like in Provincial Court (Family) - the document might just simply say "statement". It'll say, you know, parenting statement, and that's a sworn statement.
Then there's two kinds of questioning. So you'll typically only hear about a thing called "questioning" gets scheduled. But there are two kinds of questionings.
There's one that's questioning for discovery or to discover facts about the other side's case. Then there's questioning on affidavits, and that's about testing the truth of the affidavit through a process of cross-examination.
Unfortunately, when you hear about questioning being scheduled, you don't often hear what kind of questioning it is. A number of years ago, the courts - or somebody, some rules committee - said, "you know, we should change the name of this thing, because it used to be called discoveries - and the other would be cross-examinations - and so the court, or somebody, decided let's just call it questioning because it is what it sounds like, the person, you know, one of the parties, is called in to be questioned, either for discovery or on their affidavit. The nature of the questioning and the strategies for dealing with the questioning are very different depending on whether it's a questioning for discovery and a questioning on an affidavit.
And there's other ways that we can use to get to the facts of a case. One of them that we are using more at Fair Legal, called a Notice to Admit Facts. This is a process that sometimes helps to narrow the dispute about what facts are in dispute, or narrow the amount of conflict to use up less court time. It's not always successful, it depends on the quality of the response you get.
Other ways of getting to the facts are things called Written Interrogatories. And these last two processes are really just available in the Court of King's Bench, although, they're not explicitly available in the Provincial Court, but they might be. That's a better way to say that.
Okay. So, how we present cases to the court, this screen may not come out too great. We have Family Docket Court, which is really a triage court. So, if your matter is not really, really urgent, you have to go first to Family Docket Court, and, at the Family Docket Court, the judge makes a decision about what other court procedure is going to be followed. And what defining deadlines are gonna be for that kind of - whatever venue is. Or the place that the decision is going to be made.
And then there's a bunch of, for example, the Family Docket Court can set things over to Justice Chambers - another name for that is Family Chambers, or Morning Chambers. In the Court of Kings Bench Justice chambers, or Morning Chambers, typically start at 10:00 AM. Sometimes they start earlier for restraining order or reviews of emergency protection orders.
Then the other kind of - you also hear about Domestic Specials or Special Chambers. These can be scheduled for a one-hour hearing, or a two-hour hearing, or half-day hearing, or a full-day hearing. And it really depends on the complexity of the case.
The Morning Chambers, the one Justice Chambers, or Family Chambers, and Morning Chambers, the arguments are limited to under 20 minutes, which includes both parties saying what they have to say, the judge making a decision, asking questions, and getting further input from the parties. All of that has to take place in under 20 minutes. And if it looks like it's gonna be more complicated than that, then the court is going to bump the case over to a Domestic Special or a Special Chambers hearing. And those Specials, that's when you start needing briefs and concise letters in order. And so that, there's a little bit more legal work required to be prepared prior to the Special Chambers hearings.
And they often are scheduled months out. So if you have a case that's complicated and urgent, you're gonna have to jump through some special hoops to get the case heard quickly.
Then, the next one here is called a Viva Voce hearing or an Oral hearing. Viva Voce is just Latin for live voice, I think. Something like that. The idea here is like a mini-trial, and typically we see these on emergency protection order cases where, you know, it's a "he said/she said" kind of thing, the parties are in disagreement and the court says, "well, you know, I can't decide from the basis of these affidavits that are conflicting. The parties don't agree on the facts. And the judge says, "you know what, we can't make that decision without actually seeing the witnesses on the stand, and looking them in the eye while they're talking, and decide, you know, is this person telling the truth or are they a bald-faced liar, or are they just..." Whatever. That's what the purpose of a Viva Voce hearing is, so that the judge can assess the credibility of the witnesses. And make a decision. Again, that's part of that adversarial process. The judge wants to hear from both sides.
Now, Viva Voce hearing, or an oral hearing, typically those are, in the emergency protection order review process, they're typically limited to one hour. There's some very strict rules about how, you know, how you get to ask questions during that process. Sometimes you can get an oral hearing that's set for a half-day, or a full-day, that deals with only part of a case. You can often see that happening in Provincial Court (Family).
And then the penultimate destination of all of the court processes, in any court, is a trial. And,, ultimately, a trial is simply that the each party calls witnesses, those witnesses testify in chief, which means they're, they're giving their version of the facts. Then the opposing counsel, or lawyer, can stand up and ask them questions that are cross examination kinds of questions to find out whether they're telling the truth or not.
And, at the end of the trial, the court makes a decision that is a final decision, and we call that a judgment.
Okay. But the Court also has Alternative Dispute Resolution processes. ADR is a short form for that. Where the issues are child support, you have a dispute resolution officer. When the issues involve parenting issues, and there's some degree of urgency, the courts have found that scheduling, in the Court of Kings Bench, an early intervention case conference has been found by the courts to be a really good way to focus the party's attention early on in the case. And it's kind of like a mediation in that the judge is gonna be pushing the parties to come to an agreement. The judge can't make a decision like an arbitrator could, the judge can only make a decision if the parties agree. However, the judge can make procedural orders. And so, that can be a useful way of moving a case along.
A case conference is very similar to an early intervention case conference. In fact, I was in a case conference recently and the judge kept referring to it as being an EICC and not just simply a case conference. And the forms to be submitted in advance are almost identical. The case conference ideally, or theoretically, can deal with issues other than just parenting and, things that are not quite as urgent.
Then we have judicial dispute resolution or JDR. And again, a JDR is like a mediation except that you've got a judge who is helping the parties reach a decision, and you can imagine that a judge is going to have some views of how that judge would decide the case if he was hearing it at a trial. And so that's a very valuable insight or perspective on the case that the parties might find very useful and help them to decide, hey, look, let's, let's agree. You know, like any agreement is gonna be better than the alternative. And having a judge like this one decide this issue this way when we've got an option to decide it another way.
And different judges have, again, very similar to mediators, when they're sitting in a JDR, they can be helping the parties find creative solutions and options that they can't come up with on their own, or they're having trouble coming up with on their own, the judge can be pushing them, as I said, saying, "look, if you don't come to an agreement, it's gonna be worse for one of you, or both of you, at court." And, or the judge could be really good at pulling out from the clients how their interests really do line up and maybe they can reach agreement.
Some of the judges that do these JDRs were formerly mediators in private practice. And some very well respected mediators have moved on to become judges. And so, you often see their names showing up on the JDR lists.
I'm gonna mention binding versus non-binding. A binding JDR is an arbitration, essentially, using a judge. Non-binding JDR is a mediation using a judge.
Now, then there's some various rules and resources to assist. This is where we're just gonna start getting into some of the random things. The Rules of Court. The Alberta Rules of Court are primarily used in the Court of King's Bench, but they can be referred to in Provincial Court when the Provincial Court rules are silent on the issue.
So, I mentioned earlier on, the notice to admit facts is something that comes out in the Alberta Rules of Court. It's typically used in the Court of Kings Bench. But because the Provincial Court rules don't say anything about the notice to admit facts, we use the argument that it's applicable because of the Rules of Court.
Then there's various practice notes. And there's been some question about, you know, PN7, and PN8, and PN2, and that jargon there is - all of these practice notes are basically commentary by the court that says, look, or policy statements that say, look, in these kinds of cases, this is what we'd like to see. And this is the kind of deadlines that we're gonna impose for finding different kinds of documents. These are, when it comes to a PN7, that is an intervention to try, for example, a PN7 can be used to find out what the children are saying about what the parenting proposed parenting arrangements are. A PN7 can be used to facilitate a rehabilitation of the relationship between a parent and a child.
The Court often can turn to experts, and experts can be on a variety of issues. On, you know, dealing with substance abuse issues, toxicology issues. Also, parenting experts. You know, custody and parenting experts that are done under a Practice Note 8 assessment, for example. And a Practice Note 7 also involves experts.
There are different rules for getting expert testimony in front of a judge. The experts are not there to decide the issue, but really just to provide the judge with more expert testimony in - or an expert opinion - where the matter might require some more than general knowledge that a judge would have.
I said the interventions there are provided, that's the Practice Note 7 and 8 under the Family Court rules.
Another resource that's out there is duty counsel. Duty counsel is a lawyer that is paid, typically by legal aid, to assist parties who are unrepresented. They have a fairly limited role because they just can't get into the case, but they will try to, you know, in a few minutes before court, trying to tell out what the essence of the case is and then present that to the judge. That duty counsel can be a very valuable process to the judge because it helps keep the cases - it helps the judge figure out fairly efficiently what a case is about.
And duty counsel will also act as kind of a triage person, and sort out which cases get called first in court. So the duty counsel will talk to all of the parties that show up if they've got lawyers. He or she will talk to the lawyers. And then they will - if the lawyers say, well, look, we've got an agreement on this and this and this, the duty counsel will advise the court that those cases can be called earlier.
The other thing that the courts will do, and this could be either a duty counsel or the court clerk will sometimes have this function is they will try to have cases where both parties are represented by counsel - or by lawyers - those cases get called first so that the clients aren't sitting there paying for their lawyer to be just sitting in court not doing anything.
So they get the cases where there's two lawyers on both sides. They get called first and then the cases where there's just one lawyer, and then the cases where there's just two unrepresented parties. And again, that's just a way to facilitate the Court's process on that.
Another resource that's out there is that one can write to the Associate Chief Justice of the Court and say, you know, this case isn't moving along the way it should be, we would like to have a case management judge assigned to the case. And that case management judge can help the parties sort out evidence issues, disclosure issues, timing of, you know, practice note interventions and that kind of thing.
So case manage management can be a useful process. The case management judge has to be requested by one or both parties, and the request has to go, as I said, to the Associate Chief Justice, who then makes a decision and assigns the case management judge, who then sticks with the case throughout its life.
Okay, so now I just - we came up with a number of lists here. So, these are just random. What does "ex-parte" mean? Well, ex-parte means without a party, without notice to the party. And going back to that adversarial system, and that fairness requires that both parties have an opportunity to be heard by the Court.
So then you say, well, why would there ever be a need for something to happen on ex-parte basis if the fundamental process has to be both sides get a chance to be heard? Why are we doing things on an ex-parte basis? Well, sometimes, we can't find the other party, so we have to go to the Court to get some kind of order to figure out what to do next. That's an ex-parte application because we can't find the party.
Other times we say, look, we have to go to court without notice because if we do give the other party notice, they're so outta control that something bad's gonna happen. And that could be, either there's a risk of domestic violence, or there's a risk that the party is going to leave the jurisdiction with a whole bunch of assets.
And so, ex-parte applications can be used to get an initial restraining order against somebody. Or they can be used to freeze assets, and things like that. But the Court always has to be very cautious about giving ex-parte orders because it just violates that fundamental principle of, hey, both sides have got an opportunity to hear.
So even when you get an ex-parte order, the expectation is that it's gonna come back into court fairly quickly once the other side gets wind of what's going on. And you better have told the full story when you're getting your ex-parte order, otherwise it's going to be in jeopardy when it comes back for review. So that means you gotta say the full story, not just the stuff that's in your favor.
So, Practice Note 7 interventions, I already mentioned those.
Then there's uncontested versus contested divorces. And a desk divorce. Contested means there's issues in dispute. Uncontested means nobody's disputing, they just wanna get divorced. An uncontested divorce is available when the parties don't have any children, when they don't have any property, when they're both making the same amount of money, and they're just done with each other and they wanna move on, and they use an uncontested divorce process. And it's called a desk divorce as well, where you submit the divorce documents to the Court over the counter, and eventually, weeks or months later, you get your divorce granted.
You still have to give the other side notice of what's going on if you're just the one person asking for the divorce. So you've gotta serve the notice that your Statement of Claim for Divorce on the other side and, it might be that the other side says, oh, no. No, no. We do have children. Remember? And the Court then has to - obviously, then that turns into a contested divorce. Or no, I do want spousal support, or I do want a division of property, and therefore I'm going to contest this divorce.
And so, what might seem like it's going to be an easy uncontested divorce might turn into a nasty contested divorce. That's why lawyers, when you go to a lawyer and say, oh, I don't think there's gonna be any problems, the lawyer says, well, okay, well, we'll see because we can't tell whether there's gonna be a problem until we've given notice to the adverse or opposing party.
Sever corollary relief. Well, in every divorce case - or, I shouldn't say every divorce case. Divorce cases typically involve more than just the divorce, which is the legal right to get remarried, essentially, putting an end to the existing marriage. I mean, getting the legal right to remarry, that is a separate thing than all of the other things that are involved in a family dispute. Like the children. Who's gonna make decisions regarding children? Who's gonna have parenting time with them? You know, what's the schedule gonna be like? How is the property gonna be divided? Who's gonna be paying for the child support and spousal support and that sort of thing. All of those other things are called corollary relief.
And a court can't grant a divorce at all if child support is still an issue. The court is going to be reluctant to grant a divorce if some of the other financial matters, like the spousal support, are not resolved as well. And the parties might say, well, look, this is taking years to sort this stuff out, the financial stuff. We really do want to be divorced and we'd like to get that divorce done now. So, one of the parties can apply to sever corollary relief, and the other party, you know, they have to be given notice of that and they can actually have some input into that.
You would think that it would be a slam dunk to get the corollary relief severed so that you could get divorced and move on with your life, but it isn't always the case that the Court will grant that. And sometimes you're gonna be stuck married to the person until you get more stuff resolved.
So, that was a whole bunch of stuff. I'll open it up for questions, and, hopefully, that was helpful to put it in some kind of context and, rather than just randomly read out definitions of various things.
Great. Thanks Charles.
Melanie Seneviratne: So the first question that I have is: If you have a judge for a JDR, can you address the same judge for the trial?
Charles Fair: No. [Laughs] Okay. And part of that is kind of going back to that same problem with the mediation arbitration. So once the judge has heard the JDR they are excluded from being able to hear the trial. Okay? Because it just doesn't - it's not fair, right? One party goes into the JDR in good faith and says, hey, you know, here are the weaknesses of my case.
And the judge, you know, maybe said some stuff off the cuff and provided some, you know, preliminary views of the case. Well, you know, how can we be sure that that judge is not being influenced by that earlier view of the case that wasn't really a fair view of the case for whatever reason. And so, no, a JDR judge is typically excluded from running the trial.
The same thing may happen if there's really contested chambers applications that also might result in the judge not being able to preside over the trial.
The other thing that can happen, this is kind of the reverse issue, is, sometimes, a judge gets their teeth into a case in the early stages and then decides that, since they've started hearing some evidence, that they have to hear all of it and it can't bounce around from judge to judge. And, when that happens, we say that the judge is seized of the case, which is an old - it doesn't mean that they're seizing it, like grabbing it with their hands - but it sort of does - but it's an old legal term that basically means that judge has to keep being the one to decide those matters. And it typically happens when the judge starts to hear evidence but, for whatever reason, the process isn't completed and a full decision hasn't been made yet because there's more evidence to be obtained or to be heard or whatever. And that judge is seized of the case.
So it's a little different than a case management judge who's also assigned to the case. That judge who seized is hearing evidence already.
Melanie Seneviratne: Okay, great, thanks.
So the next question is: If you are self-represented, do you have to qualify for duty counsel, like, based on income and those types of things?
Charles Fair: No. The duty counsel is there as an officer of the Court and to assist. In fact, you know, sometimes lawyers - you know, I was in court once and there was no duty counsel. I think we were in the afternoon and duty counsel had gone home or something, and there was a self-represented party who really, really needed help. I think she was, essentially, she was facing criminal charges and living on the street. And so I talked to her and found out enough about the case and I went to the crown, I said, here's what's going on, and the Crown agreed to withdraw the charges. So how's that? I mean, I wasn't even an official duty counsel and I managed to get this woman's charges withdrawn by the Crown.
So sometimes, so duty council really just refers to a lawyer who's helping the Court out to facilitate the process.
Melanie Seneviratne: Okay, that's great. So I'm gonna apologize if I explain this incorrectly. I'm just gonna read what it says. Can you explain how a severable settlement agreement can be agreed upon, and then a follow up hearing with one contested issue. Example: decision making.
Also, can you explain how a legal aid settlement conference may happen?
Those may be two different questions, so -
Charles Fair: So, there's a whole bunch of Rules of Court and, you know, I mentioned that as one of the resources here, Rules of Court and Practice Notes. You know, one of the important things that the Rules of Court are designed to do is to narrow the issues. Way back when, when I was in law school, and learning about this stuff, it was pointed out that 95% of cases don't make it all the way to trial. Because there's a lot of rules and procedures, that kick in almost from the very beginning that will start to narrow the issues.
And so one of the ways of narrowing the issues is to - you know, if the parties agree on everything, then why do we have to argue about everything in front of the judge when really we can just say, well, this dispute is just about this. So I was in court, yesterday, and the parties had agreed that there was going to be a mutual no contact order, but the only thing we couldn't agree on was whether or not there was going to be a police enforcement clause. And so we got into court and we argued pretty much just about that issue.
Now, one of the things that can happen though is you say, well - this is where it might seem unfair - you say, well, typically if you're trying to negotiate an agreement, this is, like, a package deal. You know, like, you don't wanna be stuck with negotiating, and giving up all sorts of stuff, if you can't get one issue that's important to you.
So I think that's what might be underlying this question is, you know, how can you end up with one issue being argued when you had this agreement that maybe the expectation was no, no, there's no agreement until we have an agreement on everything. And that's a miscommunicationand, and that can arise if somebody's not really clear about what's going on.
So typically in a mediation, for example, you know, one thing to agree on is, okay, can we sever this one issue and say, look, we've agreed on everything but, and then just have a - you know, go into some other process to decide that issue that you haven't been able to reach agreement on. But there has to be an agreement to sever that issue.
Now, maybe a very poor idea to not sever, especially in a family law case. You know, but again, there's ways of handling that. I mean, you can go into court with no agreement, so to speak, like what I did yesterday on that mutual - you know, there was an application for a restraining order and we went into court and just simply said, look, these are the issues that I think we're agreed on, because the last thing I wanted to do was have the other side just argue their case all the way from the beginning and get a restraining order against my client, so we argued it on the little softer approach.,
So sometimes that's not always clear whether there's a specific agreement. But in that case, what I did is just said to the judge, or the lawyer on the other side, I said, look, you know, it looks like we're really just not in agreement about this police enforcement clause. What do you say about just arguing that in front of the judge? And the lawyer said sure. Okay? So I had his agreement. It was an informal agreement, but that was necessary. Had I not said that, then it would've been improper for me to put it to the judge in that fashion without the other side's agreement.
Sorry, that's a long answer to that question.
Now what was the second part of it? It was -
Melanie Seneviratne: The second part was: Can you explain how Legal Aid Settlement Conference may happen?
Charles Fair: I'm not sure. I think that there's a procedure. I don't do very many legal aid - well, I don't do any family law legal aid cases anymore. I deal with some legal aid criminal cases. I seem to recall a notice that was saying, look, if both parties are represented by legal aid, then they're gonna use their staff lawyers to try to, you know, have a settlement conference. And so I'm thinking that might be what the situation is.
You know, given legal aid rates, it has been, you know, more and more lawyers are saying, look, this is unsustainable. You can't run a case properly on legal aid. And so the legal aid might be having trouble getting lawyers to sign up, in which case, that's why they would have staff lawyers do a settlement conference.
Okay. We're at time, so maybe we'll just go a couple more minutes, and answer a few more questions. We won't be able to get to all of them, but we'll do a couple more.
Melanie Seneviratne: Is parenting alienation recognized in Alberta's Court, and, if so, how does one bring its to court?
Charles Fair: Parental alienation is, it's not properly a diagnosis and it's been a thing kicking around, it kind of started when I first started practicing about 30 years ago. And there was a lot of debate is this a thing or is it really just a dynamic, and what does it mean?
You know, because parental alienation means that the child is alienated, but that's not a condition of the perpetrator of the alienation that is treatable. And so, so that's where there's a problem with that. And what I would say is that the Courts don't like children being estranged from their parent, unless there's a good reason for that estrangement. And that's why you have the Practice Note 7 intervention that's there. So the term parental alienation will sometimes show up in court cases, but I'm not gonna say that the courts recognize it in the same way that - it's not a universally agreed upon term. And so, it does get used in the Alberta courts, but not in that diagnostic kind of way.
Melanie Seneviratne: Okay. Next question. My ex filed an ex-parte motion against me where custody ended up being switched. Shouldn't I have got a date within 10 days of being filed to present my case?
Charles Fair: So the 10 day rule is in a specific case for an emergency protection order situation.
I'm not gonna get specific advice on that situation, but if somebody obtained a change of custody on an ex-parte basis, there must have either - the Court must have been convinced that there was good reason to it, because courts don't generally like giving ex-parte orders unless they're sure that it's going to come back into court fairly quickly.
And if the ex-parte order made an actual change in the custody or in - custody is not the right word anymore - but in the change in the defacto or the actual parenting that had been established, then it's probably an appealable order. And, again, I can't give legal advice on it, but you gotta have a lawyer take a look at it. Because there's, you know, yeah, I can't stress enough how important it is that both sides be heard. And when you're getting an ex-parte order, you have to disclose both the good and the bad parts of your case. If you miss saying what the weak parts of your case are, and you get that order and the judge says, look, you know, you should have said what the full deal was, what the full picture was, then that ex-parte order is very much at risk.
So, again, you gotta get legal advice. And I wouldn't run that one on your own.
Melanie Seneviratne: Okay. This is just a clarifying question. Did you state that duty counsel has to help self-represented persons?
Charles Fair: Well, I mean, ultimately, a duty council may decline to help somebody if they are - they might be in a conflict of interest, for example. Because duty council typically will have their own files, so they might decline to represent somebody if that person is showing up and, for some reason, they're disqualified from representing them.
Duty council can also say, well, look, this is way too complicated. I can't do justice to this. All I can do is say to the Court, you know, so and so's here to either defend or to bring this application, they really do need a lawyer and this matter should be put over to another date. the duty council should be able to do that.
Sometimes duty council can assist in actually negotiating an agreement, although that really depends on the caseload that the duty council has. You know, how many cases are on the Court's docket and how many people are demanding their attention. And they simply may not have time to get to it all..
Melanie Seneviratne: Okay. What is the difference between having a lawyer appointed for your children and a Practice Note 7?
Charles Fair: Well, a Practice Note 7 will typically involve the appointment of children's counsel. Children's counsel need not be appointed pursuant to a Practice Note 7.
You know, I don't do a lot of child representation, but I, I did do one where I was representing a teenager and it wasn't a Practice Note 7, it was just simply, you know, go talk to the boy and find out what he wants and present that to the Court. I ended up cross-examining his mother, and he got what he wanted, which was to be with his dad.
So, I don't know whether that's typical, but anyway, so - and there was no Practice Note 7.
Practice Note 7 intervention may or may not have a children's lawyer. Probably does, but oftentimes there's a social worker or child psychologist who's - but probably more likely a social worker - that's involved in the Practice Note 7.
Melanie Seneviratne: Okay. How do you get judges to ascertain accommodation for persons with disabilities?
Charles Fair: Tell them.
You know, I think there is an increasing recognition that the justice system has to make accommodations for people that might have a disability of one sort or another. You know, if you have an issue, you know, you put it in front of the judge and it might be that you have to file something with the court and put it in writing before the judge.
And if the judge is - you know, the judge is taking a real adverse position, and, you know, refusing to, you know, say, take a break, for example, because somebody's having a meltdown or something like that. Or one thing that can happen is, you can have, a companion dog can be assigned to - particularly children, when they're testifying, they can bring a dog into the courtroom and be there as a companion.
You know, if the Court, if the judge makes an order refusing a request like that, then you need to, you know, put it on the record that you disagree with it. I mean, again, it's really dependent on the particular circumstances.
Melanie Seneviratne: Okay. So that's all that we have time for today for questions.
Charles Fair: Okay.
Melanie Seneviratne: I'll pass it to Vanessa to close up.
Vanessa Farkas-Brahmakshatriya: Thank you so much, Charles and Melanie. And thank you to our participants for coming and making this webinar such a success. It's great to see so many attendees. And we have a lot of educational programs like this one, and also mental health support programs, for men struggling due to relationship breakdown or turmoil.
So please visit our website at CCMFAlberta.ca. That's the Canadian Center for Men and Families, Alberta.
Thank you, again, to Fair Legal. They do one of these every month. So, it's a great opportunity to educate yourself about family law and criminal law as it affects the population that we serve.
So I hope to see all of you again and have a good evening.
Calgary lawyer Charles Fair brings over 30 years of experience to Fair Legal in criminal, family and civil litigation. Charles draws on his personal experiences related to each field of law which helps him to understand and relate with each of his clients. He is compassionate, caring, and will always be your champion for justice when life gets messy.