ONTARIO BAR ASSOCIATION - FAMILY LAW SECTION EXECUTIVE FALL REPORT - November 2004 Grant Gold, Chair of the Family Law Section 1. Dinner Meetings September 14th, 2004 - Attorney General Addressed the Family Law Section [summarized from an article by Elizabeth Stokes, student-at-law, Goodman and Carr LLP and Anne Marie Horne, partner at Epstein Cole LLP ] The new Attorney General for Ontario, Michael Bryant, addressed our family law section. The focus of the speech was on developments and reform in Ontario family law. The A.G. talked about improving services for families and, in particular, the newly created Ministry of Child and Youth Services, which aims to consolidate many important services for children under one ministry and deliver services to children by working collaboratively with other ministries. He raised the following issues: victims of sexual assault and domestic violence, children involved in the justice system, backlogs in the Courts, the new Family Law Rules, arbitration act, and pension issues. He expressed some concern about the Arbitration Act, regarding the possibility of vulnerable or non- consenting individuals participating in the arbitration system. Pension issues, including valuation approaches and division methods, are considered by the A.G. to be “a fairly urgent problem” given the lack of guidance provided under the Family Law Act. He is quite aware that most times there is competing evidence from valuators which results in costly disputes for clients. He also acknowledged that the baby boomer generation will certainly be pushing this substantive issue to the forefront. The A.G. stressed the importance of flexibility in the law to reflect various marital arrangements. Taking all of this into consideration, he has asked his policy people to look into the necessary reform in the pension area. He promised to work with family lawyers and other interested parties to mould the law to find resolutions. The A.G.’s comments that the Province must act now to amend laws to reflect the new reality and changing nature of family laws received enthusiastic applause. He commented that the definition of “spouse” must be changed to conform with the Halpern decision of the Court of Appeal. Additional necessary reform also includes rethinking the definition of “parent” for birth certificates and other purposes. The definition must encompass the various types of parental roles, for example, bearing children through assisted human reproduction. What was most encouraging was that Mr. Bryant spoke about the process of how to accomplish these substantive changes. He said there would be regular meetings between his Ministry and the Family Law Bar to discuss the issues of policy development and changes in legislation and in particular, he wants our input on the Spousal Support Guidelines, our submissions on pension reform and on the definition of “parent” and “spouse”. The A.G. encouraged the Family Law Bar to continue to raise the issues that they encounter in practice, and give recommendations to lawmakers. -2- October 18, 2004 - The Family Law Rules: Perils and Pitfalls Judges, practitioners and court staff addressed issues under the Family Law Rules, including how to avoid being caught by the time limits; common problems with filing and how to avoid them; what to watch out for in motions; how to get your case to trial; how to conduct a trial under the Family Law Rules. November 16, 2004 - Mediation/Arbitration: What you need to know, pros and cons, advantages and disadvantages Philip Epstein Q.C. will chair a panel of senior family lawyers [Terry Caskie, Julie K. Hannaford, Hilary Linton] who will speak on the pitfalls to avoid and tips on how to maximize the benefits of mediation/arbtiration. January 2005 Institute Program Agenda The all day program is called “Hard and Soft Core Family Law” and is designed to be a balance between updates from top-notch practitioners and academics on “hard” legal issues, with advice from professionals on the “softer” side of family law practice. Topics to be covered include an update on the Child Support Guidelines, the Spousal Support Guidelines, ADR and collaborative family law, pensions. There is a session by Natalie Armstrong from Golden Media in California on marketing your family law practice. In the afternoon, attendees have a choice of workshops on topics ranging from parenting plans to common law/same-sex family law issues. 2. Committee Work Family Law Reform Committee Our family law reform committee is actively working to bring forward to this government, our suggested areas of reform. The committee is trying to use the momentum created by the A.G.’s invitation for our input on legislative reform. The committee is hoping to have a proposal to the A.G. on pension reform by the end of November. The committee is also considering the following topis of legislative reform: • Pensions • Matrimonial Home • Eligibility for Adult Support • Extension of Property Rights to Unmarried Spouses • Parental Definition • CFSA issues • Implementation of S. 25 (D.A.) - variations out of court • Guidelines as to retroactive child support/ change in disclosure requirements -3- • s. 5(6) issues (power to adjust even where NFP are equal, discretion to take into account post-separation events) • Change in treatment of gifts and inheritances, to eliminate different treatment depending on whether received before or during marriage (and to change to deduction instead of exclusion?) • Anti-Avoidance Provision • Changes to Common Law (Trust) remedies 3. Legislative Update The expansion of the Family Law Rules to all courts has taken place in Ontario and one set of Rules now governs all family law cases.
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