Your SlideShare is downloading. ×
Conflict, Court, or Another Way? Different Ways of Resolving a Family Dispute
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×
Saving this for later? Get the SlideShare app to save on your phone or tablet. Read anywhere, anytime – even offline.
Text the download link to your phone
Standard text messaging rates apply

Conflict, Court, or Another Way? Different Ways of Resolving a Family Dispute

860
views

Published on

Recorded on November 22, 2012 - This webinar in the Family Law Education for Women (FLEW) series looks at a variety of ways to settle issues about children, property, and support, when a woman ends …

Recorded on November 22, 2012 - This webinar in the Family Law Education for Women (FLEW) series looks at a variety of ways to settle issues about children, property, and support, when a woman ends the relationship with her partner. What are the pros and cons of mediation, arbitration, and court, especially when there is or was abuse in the family? METRAC's Legal Director, Tamar Witelson, discusses the issues with Victoria Starr, a specialist in family law practice, and founder of Starr Family Law. Watch the webinar at:
http://yourlegalrights.on.ca/webinar/Conflict-Court-or-Another-Way-Different-Ways-of-Resolving-a-Family-Dispute

Published in: Education

0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
860
On Slideshare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
1
Comments
0
Likes
0
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. Conflict, Court or Another Way? Different Ways of Resolving a Family Dispute November 22 2012November 22, 2012 Tamar Witelson, Legal Director, METRAC Victoria Starr, Starr Family Law, Toronto f il l y Funded by: Funded by: www.onefamilylaw.ca 11/22/2012 1
  • 2. This webinar is brought to you by  Your Legal Rights: a website of legal  information for people in Ontario. www.yourlegalrights.on.ca
  • 3. Please Note: The content of this webinar is based on law or  policy that was current on the date the webinar  was recorded Your Legal Rights webinars containwas recorded. Your Legal Rights webinars contain  general legal information. They are not intended to  be used as legal advice for a specific legal problem. be used as ega ad ce o a spec c ega p ob e For more information on how to find a lawyer or  to contact your local community legal clinic visit:  www.yourlegalrights.on.ca/find‐services
  • 4. Presenters Tamar Witelson L l Di t METRAC Victoria Starr Family Lawyer/Mediator/ArbitratorLegal Director, METRAC Family Lawyer/Mediator/Arbitrator, Starr Family Law, Toronto Victoria Starr of Starr Family Law has practiced exclusively Tamar Witelson is the Legal Director at METRAC Her Law has practiced exclusively in family and child protection law for more than 15 years. She represents clients Director at METRAC. Her background includes practice in labour and human rights law, and in Constitutional law for the O t i Mi i t f th Att in court and in various alternate dispute resolution processes, with expertise in domestic violence and sexual Ontario Ministry of the Attorney General. She was also counsel at the Human Rights Tribunal of Ontario, and before joining domestic violence and sexual abuse. She is also a trained mediator, arbitration and collaborative family law lawyer. , j g METRAC was staff lawyer at the Women’s Legal Education and Action Fund (LEAF), running an equality rights law and information 11/22/2012 4 equality rights law and information website.
  • 5. METRAC METRAC, the Metropolitan Action Committee on Violence Against Women and Children  works to end violence against women, youth and children t f fit it b d i ti a not-for-profit, community-based organization www.metrac.org METRAC’s Community Justice Programy g  provides accessible legal information and education for women and service providers  focuses on law that affects women, from diverse backgrounds, especially those experiencing violence or abusep y p g FLEW, Family Law Education for Women in Ontario  provides information on women’s rights and options under Ontario provides information on womens rights and options under Ontario family law  in 14 languages, accessible formats, online and in print www.onefamilylaw.ca h d d f llhttp://undroitdefamille.ca/ 11/22/2012 5
  • 6. Presenters Tamar Witelson l Di R C Victoria Starr Family Lawyer/Mediator/Arbitrator StarrLegal Director, METRAC Family Lawyer/Mediator/Arbitrator, Starr Family Law, Toronto 11/22/2012 6
  • 7. Topics to be Covered 1. What is Different about Alternate Dispute Resolution (ADR)? 2 T f ADR2. Types of ADR a. Negotiation b. Mediation c Arbitrationc. Arbitration d. Parent Coordinators e. Collaborative Law 3 ADR and Abuse3. ADR and Abuse 4. Screening for Domestic Violence 5. The“Need to Know”Basics 6 Additional Resources6. Additional Resources Accurate as of the date of this webinar presentation: November 22, 2012 11/22/2012 7
  • 8. Wh i Diff b ADR?What is Different about ADR? 11/22/2012 8
  • 9. What is Different about ADR? Alternate Dispute Resolution (ADR)  A method to resolve a dispute other than Court  Used in many areas: • Employment problemsp y p • Business disagreements • Contract disputes • Family arrangements• Family arrangements 11/22/2012 9
  • 10. What is Different about ADR? Resolving a Family Dispute in Court  One side initiates action; the other defends  Often takes a long time U ll b h l Usually best to have a lawyer  Costly  Formal Rules  Judge’s understanding of family issues varies  Little control over outcome  Not confidential  Outcome is a“Court Order” 1011/22/2012
  • 11. What is Different about ADR? Alternate Dispute Resolution vs. Court  Voluntary  Can be less formal h h h d h d Parties choose the third party who assists and/or decides  Third party usually an expert in family issuesThird party usually an expert in family issues  Usually moves more quickly than Court  Sometimes possible without lawyersy  Can be less costly 11/22/2012 11
  • 12. What is Different about ADR? Alternate Dispute Resolution vs. Court  More control over processMore control over process  Can be more private  Results can be more tailored to the parties’concerns  Most effective when both sides have comparable bargaining power 11/22/2012 12
  • 13. T f ADRTypes of ADR 11/22/2012 13
  • 14. Types of ADR 1. Negotiation  First step of every ADR process  Very informal  Discuss differences to work out solutions  With or without a lawyer  Can walk away at any time Can walk away at any time  Successful outcome is a “Domestic Contract” 11/22/2012 14
  • 15. Types of ADR 2. Mediation  Negotiation with the assistance of a mediatorg  With or without lawyers  The mediator • is chosen by the parties• is chosen by the parties • is a neutral professional • can make suggestions • cannot give legal advice• cannot give legal advice • cannot force a decision or solution  Goal is to meet the interests of both parties as much as possible C lk t ti Can walk away at any time  Outcome is a “Memorandum of Understanding” (MOU)  Can become a “Domestic Contract” if parties agree 11/22/2012 15
  • 16. Types of ADR 2. Mediation  Can be: • Independent of Court• Independent of Court • Before Court • At Court  Ontario government-funded mediation • Free mediators at courthouses • Available to everyone• Available to everyone • Free Legal Aid mediators • Available if at least one party eligible for Legal Aid • At courthouses and Legal Aid Officesg • Private government-subsidized mediators • Up to 6 hours • At courthouse or off-site • Low cost, income-based 11/22/2012 16
  • 17. Types of ADR 2. Mediation  No mandatory family mediationNo mandatory family mediation  Level of privacy: a) Closed  Confidential unless child safety issue arises  Discussions cannot be raised in CourtDiscussions cannot be raised in Court b) Open  Not confidentialNot confidential  Discussions can be raised in Court 11/22/2012 17
  • 18. Types of ADR 2. Mediation  Ask questions about the process St t ith M di ti A t Starts with a Mediation Agreement  Consider written rules for mediation if a power imbalance between partiesimbalance between parties  Consider talking to a lawyer  Before starting  Before signing a Domestic Contract 11/22/2012 18
  • 19. Types of ADR Every Domestic Contracty  To be valid and enforceable: • Must be signed by both partiesg y p • Must be dated • Must be witnessed by another person • Each party gets independent advice from a lawyer • Each party makes full financial disclosure for• Each party makes full financial disclosure for money matters 11/22/2012 19
  • 20. Types of ADR 3. Arbitration  Parties choose the arbitrator  Voluntary until agreement to arbitrate is signed  Once arbitration begins, can’t walk away  Arbitrator makes a binding decision  Arbitrators must apply Ontario and/or Canadian law  Outcome is an “Arbitration Award” 11/22/2012 20
  • 21. Types of ADR 3. Arbitration  Formal process, but can be more flexible than Court  Parties must get legal advice about arbitrationParties must get legal advice about arbitration  Parties may have legal representation during arbitration  Parties must be screened for power imbalance and domestic violence before arbitration  Arbitration decisions dealing with a child must be decided according to the best interests of the child 11/22/2012 21
  • 22. Types of ADR 3. Arbitration  Arbitration process and decisions can be challenged Arbitration process and decisions can be challenged in Court if, for example: • the law was misapplied • the facts are incorrect or misunderstood • one party did not really consent • the terms are unconscionablethe terms are unconscionable • the arbitrator was biased  Arbitration agreements can restrict the right to Arbitration agreements can restrict the right to challenge a decision, but not for mistakes in law 11/22/2012 22
  • 23. Types of ADR 3. Arbitration  Faith-based arbitration • Assistance from a religious official to resolve a familyg y dispute • Voluntary • Decisions based on religious principles that do not follow Canadian law are not legally valid or enforceable in Court 11/22/2012 23
  • 24. Types of ADR 4. Parent Coordinators  Voluntary until a Parent Coordinator Agreement is signed F ft ti l i i l For after a parenting plan is in place  Useful for parents who can’t get along  Coordinator is trained in: • Child and family issues • High conflict family situations • Conflict resolutionConflict resolution • Family law  Coordinator acts to: C h ti kill• Coach parenting skills • Enforce parenting plan • Arbitrate disputes with some legal decision-making power 11/22/2012 24
  • 25. Types of ADR 4. Parent Coordinators  Parents must participate in parent coordination for the full term of the agreement, unless both parents agree to stop  Rules for Arbitration apply Rules for Arbitration apply  Outcome is an “Arbitration Award” 11/22/2012 25
  • 26. Types of ADR 5. Collaborative Law  Formalized negotiation process  Both parties are represented by lawyers  Lawyers are “communication coaches” and legal d iadvisors  A 4-way “problem solving team”  Based on cooperation Based on cooperation  Parties agree not to go to Court while negotiating a settlement  Lawyers cannot also represent the parties in Court  Can be costly 11/22/2012 26
  • 27. Presenters Tamar Witelson l Di R C Victoria Starr Family Lawyer/Mediator/Arbitrator StarrLegal Director, METRAC Family Lawyer/Mediator/Arbitrator, Starr Family Law, Toronto 11/22/2012 27
  • 28. ADR d AbADR and Abuse 11/22/2012 28
  • 29. ADR and Abuse  Abuse in a partner relationship can be: Ph i l• Physical • Sexual • Verbal • Psychological • Emotional • Financial • Spiritual  Abuse can be bullying, or any behaviour that demeans, or removes a person’s confidence or ability to act as she choosesability to act as she chooses 11/22/2012 29
  • 30. ADR and Abuse  Most types of ADR are not appropriate if there is or has been abuse in a relationshipbeen abuse in a relationship  Victims may be embarrassed or afraid to admit the abuse  Abusers may be unaware of or unwilling to acknowledge the abuse  Abuse creates an imbalance in power  Victims may feel forced into agreementy g  If abuse is not recognized, an ADR process may add to the abuse and result in unfairness 11/22/2012 30
  • 31. S i f D iScreening for Domestic Violence 11/22/2012 31
  • 32. Screening for Domestic Violenceg  Women in abusive, coercive or controlling relationships are at an increased risk of violence at the time of separation  Screening “tools” can help predict if a woman or child is atScreening tools can help predict if a woman or child is at risk of harm post-separation I O i A bi d P C di i d In Ontario, Arbitrators and Parent Coordinators are required to screen for domestic violence  Screening for domestic violence is a common best practice in mediation 11/22/2012 32
  • 33. Screening for Domestic Violence The screening process:  Screeners are trained and certified  Often done by the same person for both parties  Is usually confidential  Looks for signs of a person’s vulnerabilitiesLooks for signs of a person s vulnerabilities  Considers: • Mental or physical illness • Drug or alcohol dependency• Drug or alcohol dependency • Intense anger or blame • Confrontational behaviour • History of domestic violence• History of domestic violence  May conclude how to fairly balance a mediation or arbitration  May conclude that a mediation or arbitration should not proceed 11/22/2012 33
  • 34. Th “N d K ”B iThe“Need to Know”Basics 11/22/2012 34
  • 35. The“Need to Know”Basics 1. How do I find an ADR specialist? • Ask around – your friends, therapist, counsellor, lawyer, community agencies • Check referral services and professional organizations 11/22/2012 35
  • 36. The“Need to Know”Basics 2. How do I choose an ADR specialist? M di t t l t d Mediators are not regulated  Look for accreditation Ontario Association for Family MediationOntario Association for Family Mediation www.oafm.on.ca  Ask for a preliminary meeting to decide if the person is right for you A bit t l t d b t kill d Arbitrators are regulated but skills and experience vary  Lawyers can help you choose Lawyers can help you choose 11/22/2012 36
  • 37. The“Need to Know”Basics 2. How do I choose an ADR specialist? Things to look for: • Consider if you have unique concerns about culture or li i di bilitreligion or a disability • Consider if there was or is abuse with your partner • Ask if the ADR specialist has any familiarity and experience with these issues • Look for biases 11/22/2012 37
  • 38. The“Need to Know”Basics 3. How do I prepare for ADR?  think about the things that you and your partner can’t agree on  think about the solution you want from ADR  Talk to a lawyer or research about your legal rights Talk to a lawyer or research about your legal rights  Research about the kind of ADR you choose  Bring information with you about your finances and the things you want to ask for  prepare questions for the ADR specialist to be sure you understand the process 11/22/2012 38
  • 39. The“Need to Know”Basics 4. Do I need a lawyer for ADR?  Negotiation can work well without a lawyer  Other ADR types, such as mediation and arbitration,Other ADR types, such as mediation and arbitration, are most successful with a lawyer  Arbitration requires initial legal advice to ensure you Arbitration requires initial legal advice to ensure you understand the process C ll b ti f il l i l i th Collaborative family law requires lawyers in the process 11/22/2012 39
  • 40. The“Need to Know”Basics 5. How do I pay for ADR?  Parties usually share the cost equallyy q y  Arbitrators/Parent Coordinators can “re-align” more costs to one party in an awardmore costs to one party in an award  Free and subsidized mediation services are available at courthouses  Free Legal Aid mediation if one party is eligibleFree Legal Aid mediation if one party is eligible  You can ask an ADR specialist to reduce fees 11/22/2012 40
  • 41. Presenters Tamar Witelson l Di R C Victoria Starr Family Lawyer/Mediator/Arbitrator StarrLegal Director, METRAC Family Lawyer/Mediator/Arbitrator, Starr Family Law, Toronto 11/22/2012 41
  • 42. Addi i l RAdditional Resources 11/22/2012 42
  • 43. Additional Resources (ADR) Finding a Mediator, Arbitrator, or other ADR Professional • Ontario Association for Family Mediation htt // f /http://www.oafm.on.ca/ • Family Mediation Canada http://www.fmc.ca/ • ADR Institute of Ontario http://www.adrontario.ca/findapro.cfm • Ontario Collaborative Law Foundation http://www.oclf.ca/ • Collaborative Practice Toronto htt // ll b ti ti t t /http://www.collaborativepracticetoronto.com/ Ontario Ministry of the Attorney General - Family Arbitration • http://www attorneygeneral jus gov on ca/english/family/arbitration/default asphttp://www.attorneygeneral.jus.gov.on.ca/english/family/arbitration/default.asp 11/22/2012 43
  • 44. Additional Resources (Family) Assaulted Women’s Helpline www.awhl.org • Toll-free: 1-866-863-0511; TTY: 1-866-863-7868 • Toronto: 416-863-0511 Legal Aid Ontario http://www.legalaid.on.ca/en/getting/default.asp • Toll-free: 1-800-668-8258; TTY: 1-866-641-8867 • Toronto: 416-979-1446 (accepts collect calls) Family Law Information Centres (FLICs) http://www.legalaid.on.ca/en/getting/type_family.asp Family Law Services Centres (FLSCs)Family Law Services Centres (FLSCs) http://www.legalaid.on.ca/en/contact/contact.asp?type=flsc Family Law Education for Women (FLEW) http://www.onefamilylaw.ca/en/resources/ Femmes Ontariennes et Droit de la Familles (FODF) http://undroitdefamille.ca/ Ontario Women’s Justice Network (OWJN)Ontario Womens Justice Network (OWJN) www.owjn.org 4422/11/2012
  • 45. Additional Resources (Legal) Law Society of Upper Canada Lawyer Referral Service http://www.lsuc.on.ca/with.aspx?id=697 ll f• Toll-free: 1-800-268-8326 • Toronto: 416-947-3330 • TTY: 416-644-4886 JusticeNet http://www.justicenet.ca/directory/search/ • Reduced fee lawyers for low income people not eligible for Legal Aid i d i l l li iFind a community legal clinic near you http://www.legalaid.on.ca/en/contact/contact.asp?type=cl T lkit f d Cli t L R l ti hiToolkit for a good Client-Lawyer Relationship http://schliferclinic.com/vars/legal/pblo/toolkit.htm • Barbra Schlifer Commemorative Clinic 4522/11/2012
  • 46. Additional Resources (General) Ministry of the Attorney GeneralMinistry of the Attorney General http://www.attorneygeneral.jus.gov.on.ca/english/ • Toll free: 1-800-518-7901 • TTY: 1-877-425-0575 211 Canada.ca http://211canada.ca/ • Multi-lingual information about community and government servicesMulti lingual information about community and government services CLEO’s Your Legal Rights http://yourlegalrights.on.ca • Legal information resources, services map, news & events and training webinars 4622/11/2012
  • 47. Additional Resources (General) Online forms http://www.ontariocourtforms.on.ca/english/family/ Ontario Court Forms Assistant https://formsassistant.ontariocourtforms.on.ca/Welcome.aspx?lang=en • Get help online to complete family court forms Ontario Courts http://www.ontariocourts.on.ca/ • Online guide provides an overview of all courts in OntarioOnline guide provides an overview of all courts in Ontario • Information on family courts: – Superior Court of Justice http://www.ontariocourts.ca/scj/en/famct/ – Ontario Court of Justice http://www.ontariocourts.ca/ocj/family-court/overview/ Ontario Court Locations http://www.attorneygeneral.jus.gov.on.ca/english/courts/Court_Addresses/ • Find court addresses across Ontario• Find court addresses across Ontario 22/11/2012 47
  • 48. Additional Resources (Victim Assistance) Victim Crisis Assistance and Referral Services (VCARS) • Immediate, on-site service to victims of crime 24 hours a day, 7 days a week • Toll free: 1 888 579 2888• Toll-free: 1-888-579-2888 • Toronto: 416-314-2447 Victim Support Line (VSL) • province-wide, multilingual, toll-free information line providing a range of services to victims of crime • Services available from 8 a.m. to 10 p.m., 7 days a week in 13 languages • Toll-free: 1-888-579-2888 • Toronto: 416-314-2447 Court Prep www.courtprep.cap p • provides information on the Canadian legal system and prepares victims and witnesses to give evidence 4822/11/2012
  • 49. This webinar was brought to you by  Your Legal Rights: A website of legal information  for people in Ontario For more information visit Your Legal Rights at  www yourlegalrights on cawww.yourlegalrights.on.ca For more public legal information webinars visit:p g www.yourlegalrights.on.ca/training