Behind the Bench: Childish Parenting

Most likely that best interest would be to less time with that parent.

Realistically, that is not their job.

All that money goes to lawyers, unfortunately.

So does that result in, or potentially could that result in, supervised visits?

"I'm not going to counselling. I don't have a drinking problem. I'm not doing this."

And you end up with a client who's like, "Matt, I'm not doing any of this stuff you're telling me."

Matt, welcome back.

Hey, thanks for having me back. I was worried it would be a one-and-done thing, but here we are.

How was Stampede?

That was good. Yeah, we just did the Whoop-Up and then I think that was about it for me.

Yeah, you know, Stampede's always a great time.

But I presume that Stampede is a time of the year that perhaps afterwards you see a little bit of an uptick in family-law disputes, shall we say?

Yeah. There's a lot of phone calls and consults coming in after Stampede. The first couple weeks we get quite busy.

Yeah. It's crazy.

One of my first memories moving to Calgary for law school was there used to be Stampede-related advertising. I don't really remember who did it, but there was a billboard that was like, "It's still cheating if it's Stampeding," or something like that.

It was such an eye-opening thing for me. I was like, "Oh, people really lean into it in this particular city."

So I imagine it's a busy time.

Yeah.

We wear it on our sleeve.

So I want to talk about poor parenting decisions.

Okay.

You and I both have kids. Hindsight's always 20/20, right?

Over the years you look back and think, "Yeah, I probably shouldn't have done this or that," whatever it might be.

I have four kids. My oldest is 17. My youngest is three.

We've totally changed our parenting approach with our youngest two based on how we raised our oldest two, much to the chagrin of my two older ones.

But that's kind of how it is with parenting.

What role does poor parenting, or do poor parenting decisions, play in the context of family law, specifically with parenting?

We talked last time a little bit about the best interests of the children.

That's how that analysis always starts. It's from their focus.

The phrase is "good enough parenting," and it's a pretty low bar in most cases.

If there is a pattern of poor decisions, then most likely the best interest would be less time with that parent.

If they're putting the kids in risky situations and doing that type of thing, the courts will probably think, "All right, he has some issues making decisions when he's parenting," or, "She has terrible decisions when parenting, so we're going to limit how much time the children are going to be with that parent until they can work on that."

The nice thing about people who are still together is you've seen that there are changes and you can learn from what you've done wrong.

When you're in a separated family, everybody kind of forgets that.

When you have two people who are together, if the kid is doing something more on the risky side — for example, one of the parents lets them climb across the top of the monkey bars — it's probably not a big issue.

When you start separating and you're fighting about every little thing, then one of the parents is always picking those issues and trying to use them.

They become little weapons and little pieces of evidence to support your case instead of a learning experience.

Yeah.

Had you been together still, it wouldn't have been an issue. But because you're not, now it is an issue.

It's also when the courts can get involved and start second-guessing whether that was a good decision or not.

But they don't typically like to get into the minutiae of all that unless there are some serious risks to the kids — like driving without seat belts, taking them on motorcycles without helmets and those types of big decisions.

Would you say that the courts have somewhat criminalized poor parenting decisions, or do you not see it that way?

I don't know if I would say it's criminalized so much.

I think if you're willing to change and work on that, and you're able to show that you're willing to do that, then it shouldn't be a big issue.

If you take the view of, "I know best for my kids and I'll do what I want with them," and you continue to show that pattern, then that'll be used more strongly against you.

I might say that poor parenting decisions perhaps can in some ways be in the best interests of the children because it raises them a particular way and perhaps they can become more productive adults because of that.

Now, of course, there's a limit to everything.

But something like what you said — climbing on top of the monkey bars as opposed to hanging off of them — maybe somehow helps that child grow.

It's a risky situation, but it's a risk that they took.

Instead of instilling fear in them and telling them they can't do that, they made it across safely.

Things are fine.

Next time they're going to climb a ridge like your kids do with you all the time.

Yeah. Sometimes those decisions, if they're really risky, can be used.

But if things go smoothly, they also help your kid develop and gain some independence and things like that.

But it's a line.

I think that is what it is.

The courts try to do their best to analyze whether there is some actual harm that could be done.

Letting your kid crawl across something they shouldn't be crawling across and they fall and break their leg — that's harm.

That's harm, but it's also a life lesson, right?

Yeah.

Now you know you shouldn't have been doing that.

Or they fall and hit their head on something.

Maybe they shouldn't have put that fork into the outlet or something like that.

They learn pretty quick.

But if you try to baby them all the way through, you're right, there might be some risk to them down the road about not having those life lessons.

So does that result in, or potentially could that result in, supervised visits?

Supervised visits are kind of the de minimis of what the court can get down to.

In some of their views, that's the bottom.

We're talking about some serious harm to these kids and they need to be watched while they're with the kids.

Serious alcohol or assault stuff, or harm that could happen.

And substantiated alcohol abuse, not a mere allegation. Right?

Right.

Well, it's not always that.

There are situations that I've seen where people have been — often men.

I'm not in any way suggesting that women aren't vulnerable in domestic relationships or things like that, but generally speaking, the people who are charged tend to be men.

There have been instances where there are allegations of severe alcohol abuse or violence, not even towards the child necessarily, but violence between the partners that has led to blanket no-contact conditions.

Definitely.

The expectation in criminal is no contact and then you slowly work contact up.

That trumps any ruling that you'd get from family court. Obviously, they have to comply with one or the other.

Sometimes when it goes back to family court, my understanding — obviously, Matt, correct me if I'm wrong — is by the time you get to supervised visits, it's incredibly difficult to work your way out of supervised visits.

Is that fair?

You do have to be doing everything right.

Everything is reviewable.

Parenting time and access schedules are always reviewable on a material change in circumstances.

Generally when supervised visits are put in place, they'll say three or four months or six months, and then you can come back and have that reviewed.

If all the supervised visits and reports are glowing, and if it's alcohol, for example, you've got a bunch of breathalyzer results saying you're not drinking and all that kind of stuff, they will then drop the supervision and start increasing it.

And when you say supervised access or supervised visits here, it's professionally supervised?

Somebody has to pay for it at a facility or location?

It depends.

Generally there are professional supervisors that you can hire.

They come and will write reports.

Or, if everybody's agreeable, it can be other family or friends who can be trusted by both sides.

In a lot of cases, the maternal or paternal grandparents are still friendly with the other party and they would be agreeable to being the supervisor.

Or an aunt or uncle who still has a good relationship with both parties, or a mutual friend.

If there's no one like that, then it's got to be a professional.

Or if there are serious allegations of something, then usually you want that professional there.

From an advice point of view, I've had individuals — not clients of my own, because generally I try to send them to a lawyer that I trust to get sound advice, whose name may or may not be Matt over there.

But I've definitely had individuals as a Crown prosecutor, and just seen people in court, who because they are so desperate to make sure that they have access to their kids, agree to supervised access just because it's the fastest thing.

It's the only thing the other party is willing to agree to.

They think some access is better than no access.

From a family lawyer's perspective, is it always better to have some access versus no access if it's supervised access?

Because it's so hard to get out of there.

In criminal law, everything's an admission.

Every time you do anything, I'm like, "Am I admitting something here?"

When I look at that decision, it's almost like you are admitting that it's necessary if you immediately agree to it.

That could be very adversarial, and I understand that.

But from your perspective and experience, is it best to just agree and work your way up?

Or is it better to take the extra two, three or four weeks it takes to run it through the court system, present your side and negotiate as opposed to just taking what you can right away?

Take what you can right away is my view.

My opinion is you get in as soon as you can to continue building that relationship.

If all you can get from the other side is supervised access, and it's going to take you a month or two months to get into morning chambers, get that supervised access.

Because when you get to court in two months, they still have those allegations coming at you.

The court might just say, "All right, we'll start the supervised access now."

But if you take it now and start doing that and build it up, when you get to court at that point, you can say, "I've had supervised access for the last two months and there's been no issues."

The court says, "Yeah, you're right. There haven't. So we're going to go to unsupervised."

In your experience, the courts haven't treated it as an admission of guilt, if you will, or an admission of necessity?

No.

Interim orders are just that. They're interim.

They're kind of Band-Aid solutions to deal with what we're dealing with right now.

Family law is weird in that aspect.

If it was a civil matter and you were suing a construction company or something, everything can wait until it gets heard.

But you can't do that with kids who are growing.

You have to have something in place to build that up.

As a person who has the allegations against you, I actually kind of like having something put forward in there so that I know what my client has to do to jump those hurdles to move forward.

You have a target you can see that way.

It's also good if you're having those allegations thrown at you.

If you're jumping all those hurdles and then new ones just keep coming out, the court's going to see it the other way.

They're going to look at the other side like, "Okay, they're the difficult parent throwing all this stuff continuously at him and he's doing everything he can. Maybe we should be giving more parenting time to him."

It goes both ways, of course.

One of the factors under the Family Law Act and under the Divorce Act is what has been called the friendly parent principle — who's more willing to facilitate parenting time.

Who's more willing to be cooperative and neutral.

If this person is taking what they can get to have whatever relationship with the kids they can and doing all these things to calm the other side down about their concerns — "Look, I did anger management. Look, I did some alcohol and drug courses. I did this and I did that." — and they're still saying, "Well, now there's this. Now there's this. Now there's this," the court's going to be like, "Okay, obviously we see the problem now."

If you start doing that right away, you might even get to that point by the first appearance.

All of that can be an incredibly maddening process for a client.

Extremely frustrating.

If you have somebody who isn't an alcoholic or isn't abusive, but you have those allegations lobbed at you, how do you counsel clients to take the high road?

You're not going to remember.

Your kids — if you have young kids — aren't going to remember what's happening at this time when they grow up in five or 10 years.

You might remember you missed this time, but you won't think about it that much.

They will remember the ongoing conflict and the stress that you put them under and what they've dealt with.

They will remember all the stuff that happens between their parents and how much they fight.

They will not remember a day or a weekend that they didn't get to see one of the parents back and forth.

So don't focus on that.

Focus on the long road of these kids' lives, taking out that toxic stress and moving forward in their best interest.

That's what I usually say.

From a family-law perspective, obviously a lot of what we've been discussing has dealt with access to children.

Even your answer there — when asked how do you counsel them — how do you balance that when there's also the fight about the assets, the house and everything else?

How do you advise them on what's worth being really litigious about so that it doesn't look like they were willing to fold their tent on their kids, but it was really important that they got their truck?

Do you know what I mean?

Yeah.

With any decision, honestly, what I tell a lot of my clients is you can pay this money for your kids and give it to her to take, if I'm representing the man.

And vice versa if it's the wife.

You can take less and he gets to keep it, and you put it towards your kids.

Or you can pay it to me for mine.

So you get to pick where that money goes.

I'm happy to take it and we'll keep fighting about it.

Or we can come up with some resolution where you get to keep more of it in your pocket and you can move forward and have that used for your own kids.

So just a really practical approach.

Yeah.

Do you find yourself playing part psychologist as well?

Do you feel that way?

Yeah.

There's too much emotion in what everybody's dealing with.

I recommend anybody who's going through any separation, whether it's high conflict or not, get counselling and see someone and deal with what you're dealing with.

But yeah, there is a lot of that.

If there are serious allegations — or even if there aren't serious allegations — mediation, mediation-arbitration is the much better place to go and try to deal with moving forward.

You didn't start in mediation-arbitration.

You started predominantly in personal injury, right?

Then you migrated pretty early on in your career to family law.

But you have recently, in the past three or four years, really focused on mediation and arbitration. Is that fair?

Yeah.

And that required you to take some courses or certifications?

Yeah.

I've done a lot.

I did the 40-hour mediation training course. That's the one that lets you be a mediator in Alberta through the Alberta Family Mediation Society.

Great course. Really interesting.

I've taken a bunch of other little courses on arbitration, mediation and other things throughout.

I've been conducting mediations and arbitrations and learning quite a bit.

That history of being in court, specifically because most of my practice was high-conflict parenting, is seeing that the courts are not the place to deal with family-law matters.

In my opinion, they don't have the resources, unfortunately.

It's too much for the justices to handle everything, and there are other ways that are better that you can have it dealt with.

So you kind of answered it, but in your experience from dealing with high-conflict litigation and getting decisions that presumably went both ways from the justices versus your role in lawyer-assisted mediation or acting as a mediator yourself — have you seen examples where there's been a high-conflict case, they've managed to move it into arbitration, and they've left feeling acknowledged or satisfied with the situation?

Absolutely.

Mostly because there are a lot of good mediators out there.

It's not a normal mediation like you would go into a car dealership and try to negotiate buying a new car.

You really focus on the interests that everybody has, and you build up from there to a resolution that's going to work long term.

Instead of focusing — if you're talking about property — on, "The house is worth 850."

"No, it's only worth 825."

Switch gears and look at who needs what to purchase a new house, or who can keep this house, and what are the actual interests in what we're looking at.

Build up to something from there.

It's the same with parenting.

What are the concerns everybody has?

How can we address those concerns so everybody can move forward?

If there are communication issues, you can use apps and other rules for how you conduct yourselves in your communication.

You can set different things in a parenting plan.

You can go through an extensive parenting plan and have everybody follow that.

You can set all that up in a way that works for your family and not something where a court comes in and decides for you.

At the end of the day, no one's going to be happy if someone makes a call they don't like.

A court order is not going to stop a high-conflict person from continuing to be high conflict.

But if they had a hand in building what you built and had their say in mediation, they're more likely to follow it.

One of the things that I struggle with is obviously there's no mediation in criminal law.

You either plead guilty or plead not guilty and hope that you get a sentence you're looking for if you decide to resolve.

That's not the pre-trial process.

The pre-trial conference you have is really akin to mediation.

It is not.

To be fair, there are some very knowledgeable, experienced justices in King's Bench because pre-trial conferences are more formalized in King's Bench.

One of the most frequent ones — he's retired now — Justice Wilson.

I remember one of the first pre-trials I ever did on a multi-week trial was with him.

I had co-counsel, and he looked at my co-counsel and was like, "This should be resolved."

It could be a trial for this person, but it shouldn't be a trial for this person.

It was a pretty active discussion between him and counsel about why that matter might resolve.

They try to mediate it, but realistically that is not their job.

There have been some situations where I've had a justice say, "If you were able to agree to this plea and this sentence and you put it in front of me, I wouldn't find it unreasonable."

Which isn't them telling you to resolve, but it's a pretty clear sign that if I wanted to go back and tell my client, "You could resolve this and not go to jail, and if that's what you want, I can do that for you," then that's something I can do.

But generally speaking, it's not something that the judges do.

The negotiation is between me as defence counsel, who has a lot of information about my client and the disclosure from the police, and then the Crown.

For the most part, unless they have a serious concern about what the evidence is, their starting point is that the complainant is telling the truth and is going to be believed.

So they don't have a lot of wiggle room for resolution.

The thing about criminal matters is if you're charged with an assault, sexual assault or assault against your kid in particular, you're potentially looking at a criminal record.

You're not going to be able to travel to the States easily.

You're not going to be able to volunteer with your kids.

You're not going to be able to pick them up from school in certain situations.

And it is almost certainly going to be used against you when you finally get to family court.

There isn't really a mediation option because there's no happy medium often in criminal court.

You're either guilty and you have all those consequences, or you're not guilty and you don't have those consequences.

That's kind of where they're at.

In family law, it's not a happy medium.

A good mediated settlement is one that no one's happy with.

Okay.

It's one that no one's super happy with, but you can live with.

That's what I tell everybody.

Not a happy medium.

If you get everything you want or you're puking in a bucket, you probably shouldn't have accepted that deal either way.

It's something you're going to try and work with, knowing, "Okay, this isn't the best, but it's better than taking these next steps."

Because the next steps are where all that money goes to lawyers, unfortunately.

A lot of cases it's necessary, but in most of them I think you can come up with some resolution outside of that.

If you have a client who's dealing with criminal charges — whether it's assault against their spouse or excessive discipline involving the kids, anything like that — do you give them different advice with respect to attending mediation, going to court or making these decisions?

Nope.

If you've got those allegations, the advice is the same.

Have them dealt with.

Do what you're supposed to do.

Make sure you're taking that high road and doing everything.

Do not go down the road of trying to flip it and badmouth the other party.

If they've made the allegations first and that's out there, all everybody's going to see is that you're just trying to deflect.

It's a normal strategy in domestic-violence situations — the DARVO tactic.

Courts are really onto that.

Accept your responsibility — not guilt — but say, "Okay, that's an issue. I'm going to address it."

That's your best step forward.

Have you ever had to deal with clients?

Because my advice to my clients, even if they're in family court, is you can't admit anything.

Don't accept responsibility.

Don't use those words anyways.

Don't acknowledge that you did these things because that's all able to come back and seriously damage my ability to defend you from these charges.

My concern is if I had a client who went somewhere and was told to take the high road, told to "accept responsibility," how would that come back and harm them?

Have you ever had to deal with a client who's come to you and said, "Look, my criminal lawyer said I'm not going to counselling. I don't have a drinking problem. I'm not doing this"?

That's advice I've definitely given clients before.

Because if we're going for a resolution or I think it's going to help the Crown get me somewhere, then yeah, go to counselling.

Demonstrate you don't have a problem.

Take the steps they're asking you to because it's not going to take that much time.

In a lot of cases it can be funded counselling or funded steps so you're not losing money.

But there are also times when I tell my client, "I don't want you to do anything that can make it look like you're guilty. I don't want you to do anything that makes it look like you do have a problem."

We have the implied undertaking that typically applies between different levels of court or cases where you can't use information obtained in one case in a different case.

That doesn't apply in criminal court.

There's definitely something where if you testify under oath in one situation, it can't be used against you if you were not compelled, essentially.

But there have been lots of circumstances where EPO transcripts definitely come up, or are disclosed or used in criminal cases.

Family-law orders and family-law transcripts are brought forward and demonstrated.

So it's a very specific rule.

That's why I give my clients that advice.

Sometimes they get into family court and start being like, "Okay, I admit that this went wrong. I admit I could have handled this differently. I admit that I need to take steps here."

Then that comes back to really harm them because they say that in front of the complainant or someone who's going to be a witness for the Crown in my case, and they're like, "He admitted this."

So how do you deal with that when you have an aggressive defence lawyer like Kaitlyn here?

And you end up with a client who's like, "I'm not doing any of this stuff you're telling me."

Well, the first thing I would do is probably talk to the defence counsel and say, "Okay, what's the concern here?"

Then we're going to have to change our strategy on my end because on the family-law side, I want him to start doing this stuff.

Just because he's doing it doesn't mean it's an admission of guilt.

But I'm not going to advise him to go do anything that his other lawyer says not to do.

I will call up his defence lawyer and say, "All right, so what are we doing here? Here's what I was thinking we need to do on the family-law side. If he does this, is that okay?"

You have your counsel work together on those types of things and make sure everybody's on the same page.

The last thing I want to be doing if you have criminal charges is stepping on the toes of your criminal lawyer.

It's hard because I've definitely had clients who want to go to trial.

The amount of people who come into our office and say, "I don't care. I just want to see my kid."

From a defence lawyer's perspective, I'm like, "Look, I'm going to do everything I can to help you see your kid, but I don't want to see you convicted."

A lot of it is client management for sure.

I feel like there's the immediate interest of being able to see your kids versus the long-term interest of making sure that how you go about doing that doesn't impact your ability to defend yourself against these charges.

Particularly because, in criminal court, you have to admit facts and it has to be voluntary and all these things.

But I'm 100% confident that there have been people who have pleaded guilty just because it's the easiest thing to do to get them what they need, which is not jail time or not this or not that.

Part of my job is to make sure that doesn't happen.

I imagine a similar thing happens in family court sometimes where they're like, "Yeah, I'll do whatever I have to do, whether I agree or not. I'll say what I have to say because this is the outcome I want."

Those competing interests are where I get very concerned when people come in and they're like, "All I care about is this."

Yeah. It makes it very hard for me to do my job.

That's when you should talk to both.

Have your counsel communicate and come up with a strategy that works together.

If the main goal is to make sure we get to see the kids, then we've got to set something up so they have at least some access.

Maybe it is supervised in the meantime.

We just say, "Okay, take the supervised access because that's what's going to be happening in family law, and then we'll deal with the criminal matter."

But at least you have that access.

If you want to be more aggressive about getting that lifted and moving forward on the parenting side, you might want a different strategy and talk with the criminal lawyer.

Maybe we can structure it in a certain way.

You have collaborated with defence counsel before?

I have, yeah.

And has it gone smoothly? You guys have been able to find—

I'm just saying.

I'm sure it would be fine if I spoke with you, but—

Lawyers are difficult to deal with. Is that what you're suggesting?

No. I think they're actually very easy to deal with.

The ones I've dealt with have been great.

Wait until you deal with me.

Extremely reasonable.

Well, thank you very much, Matt, for coming back.

It definitely wasn't going to be a one-and-done type of situation.

In fact, we're going to have you on again for another episode.

Yeah, absolutely.

Great conversation, and glad you could be educating our viewers on these important topics.

Well, happy to help and happy to be here.

I'll try to stay more calm next time.