Managing High Conflict Family Law is today’s topic by Peter Graburn, senior family lawyer at MacLean Law. Peter has written numerous popular blogs on family law including his viral blog entitled “Dealing with Narcissists During Divorce“.
Some experts believe the single most detrimental factor for children whose parents have separated or are in the process of separating is a high conflict breakdown of the relationship. It is imperative for family lawyers to have a strong skill set and successful track record in managing high conflict family law disputes.
Managing High Conflict Family Law 1 877 602 9900.
“High conflict family law”. We often hear this phrase, but what exactly does this mean – aren’t all family law disputes ‘high conflict’? Well, sort of – but there is high conflict, and then there is “high conflict”.
So what causes a family law dispute to become “high conflict”? Some say one spouse with a ‘high conflict’ personality; others say it takes both spouses (some partially blame the lawyers, ie. Bill Eddy, etc.). Often the spouses have poor communication, problem-solving and decision-making abilities; sometimes there may be emotional or substance abuse or mental health (ie. narcissism, sociopath, bipolar) issues. Sometimes people are just ‘difficult’. The key in these cases is managing high conflict family law disputes.
High Conflict Family Law 1 877 602 9900.
But what actually distinguishes a truly “high conflict” family law matter and, once identified, what are the options and processes for dealing with that situation? There does not appear to be a clear definition of what is considered a “high conflict family law” matter in Alberta cases. The closest attempt appears to be from an Ontario case [see: Campbell v. Campbell (2017 ONSC 3787)] where the Ontario Supreme Court described the situation as follows (at para. 62):
“Everyone involved in this matter has acknowledged that this is a high conflict case. The conflict began during the marriage and continued throughout the separation, throughout the trial and afterward. Before the trial, there were approximately 18 motions brought by [the father] and 7 motions brought by [the mother]. Motions continued to be brought even after the parties were ordered to bring no further motions without leave. …”
So while there does not appear to be a legislative or case-law definition of what constitutes a “high conflict” family law matter, some of the factors or criteria that may lead a matter to be considered “high conflict” include:
● allegations or convictions of a sexual offence or domestic violence nature;
● child welfare agency involvement;
● several or frequent changes of lawyers for the parties;
● multiple and frequent court applications;
● in Court for a long time without adequate resolution;
● voluminous and vitriolic affidavit (ie. text, email) materials;
● repeated conflict about parenting time with the child.
Resolving “high conflict” matters
Okay so now we know what we are dealing now what are the key tips for managing high conflict family law disputes? Lawyers who practice in this area have a common suggestion for how to effectively deal with “high conflict family law” matters: address and manage high conflict cases early on and throughout the matter (ie. “the sooner the better”). As early as 2008 (see: Mdme Justice M. Trussler, Managing High Conflict Family Law Cases for the Sake of the Children, La Review du Barreau Canadien, Vol 86, pp. 515 – 538), the following processes were recommended for dealing with “high conflict” family law matters, including:
► Counselling – for both the child and the parents (if willing). Separating (and fighting) parents can be one of the most traumatic events in a child (or parent)’s life – early support in this regard may assist to prevent or reduce its long-term effects;
► Psychological Reports – whether an evaluative or therapeutic intervention (Practice Note 7) or a full bilateral assessment (Practice Note 8), these psychological reports (although often time-consuming and expensive) introduce professional 3rd party recommendations or opinions to avoid an otherwise impossible “he said – she said” situation for the Court;
►Counsel for the Child – independent legal counsel for the child is growing in use, not only (depending on the declared role of Counsel) to present the “Voice of the Child”, but to ensure all evidence to determine the “best interests of the child” is before the Court;
► Case Management – the appointment of one Judge / Justice (as early as possible in the dispute) to hear all applications relating to the matter, to build an on-going knowledge and continuity in the matter;
► Parenting Co-Ordination – a form of Alternative Dispute Resolution (ADR), Parenting Co-ordinators assist the parties to resolve disputes more in regard to day-to-day decisions regarding children. It is often a faster and cheaper way to resolve these disputes than Court, but requires voluntary involvement.
Our Vancouver, Calgary, and BC Family Lawyers Can Help 1 877 602 9900.
“High conflict” family law cases are becoming more common, in BC, Alberta and across Canada. While what constitutes a “high conflict” family law matter is not particularly clear, what is clear is the suggested response: early intervention, by the parties (through their lawyers) and the Courts. It should involve an interdisciplinary “Team” approach, involving counsellors, psychologists, co-ordinators and the Courts (Justices and lawyers) to determine what is in the best interests of the child(ren) and to (hopefully) minimize the long-term negative effects of their parents’ separation. As (former) Mdme Justice Trussler advised in her 2008 paper (at page 528):
“The sooner high conflict cases are identified, the better. They need to be segregated and treated differently from normal cases. The behaviour of the parties is abnormal and it needs to be openly characterized as such. Members of the legal profession have a responsibility to give special attention to these cases, to seek the help of experienced psychologists to try to modify their clients’ behaviour and also to alert the court that the file is a high conflict one. Lawyers have a special responsibility to the children in these cases and should not blindly follow their clients’ instructions.”
If you are looking for award winning family lawyers to help you in managing your high conflict family law dispute contact us across Canada.
