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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator . . Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . .Kristi O'Connell Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Running with scissors "I have been driven to the edge by parental alienation for many years now. You have to go through this to understand," actor Alec Baldwin said at one point during the highly publicized custody battle he waged with ex-wife Kim Basinger. Actually, Baldwin has become the poster boy of parental alienation syndrome, delv- ing into the subject in his book, A Promise to Ourselves: A Journey Through Fatherhood and Divorce. Meanwhile, even Dr. Phil has devoted a show to the subject. But, while it's apparently becoming a trendy topic south of the border, we suspect it's not such a new thing to those toiling in the family bar here. And now comes a decision that's being hailed as a wake-up call, served up by the extreme- ly capable Superior Court Justice Faye McWatt. Right here in Ontario. McWatt has stripped a mother of cus- tody of her three kids because of her "con- sistent and overwhelming" campaign to alienate the children from their dad. The case, A.G.I. v K.B.D., we hear has kept the water coolers hopping in family law offices; this ruling is a big deal. And it's probably as Harold Niman, the father's lawyer, said to The Globe and Mail: "Hope- fully, this decision will send a message to other parents of like mind that, if they alienate children, there is a huge price that will be paid at the end of it all." Niman further told The Toronto Star that McWatt's judgment should be a warn- ing to parents who, "for bitterness, anger, or whatever reason," use their kids to punish their exes. "Maybe if they realize the courts will actually step in and do something and there is a risk of not only losing custody, but having no contact with their children, they'll think twice about it." The children, aged 14, 11, and 9, were transferred to their father's sole custody and are undergoing a special therapy program for kids affected by the syndrome. The mother is to have no access, except in conjunction with counselling, pending a review. "The three children of the marriage have been alienated from the [father A.L.] over a long period because [the mother] K.D. is unable to accept that it is in the best interests of the children to have a relation- ship with their father," wrote McWatt. "She has been given several opportuni- ties to change her behaviour over many years, and refuses to do so. I find that her unrelenting behaviour toward the chil- dren is tantamount to emotional abuse as described by Dr. [Barbara] Fidler. The views and preferences of the two older children are not their own. And for the children to have any further contact with the [mother], significant therapeutic in- tervention is necessary." McWatt noted the situation escalated to where K.D. cut off contact and refused to allow the father to see or speak with his children; he had to shout goodnight to them through the door of their home, not knowing if they were even inside. "It is remarkable that A.L. has not given in to [K.D.'s] persistence in keeping his chil- dren from him over the last 14 years and simply gone on with his life without the children as, no doubt, many other parents in the same situation would have and, in- deed, have done," said McWatt. "It is now time for his and the children's fates to be free from K.D.'s control. She has shown that she cannot be entrusted with it." "I do think there's been a shift," Jeffrey H. Wilson says in a story in our family law focus section on page 10. "There was a time when a court felt that if a young person was internalizing hostile feelings against a parent there wasn't much you could do about it." He adds that there's more of a willing- ness on the part of the bench to be more proactive. "They're active in case manage- ment, and they're more involved generally," he says. "I don't want to use the word bold but they certainly are more predicated to in- tervene and take charge of a case than they were in the old days when perhaps they could be more passive." Well, we'll use the word "bold" with respect to McWatt's terrific decision. And here's a happy P.S.: Last week Bald- win walked the red carpet with his daughter and gave her a big kiss after he won a SAG award. It was the first time they've been seen in public together since April 2007. — Gretchen Drummie trials. The Report of the Review of Large and Complex Criminal Case Procedures is a study of the problems being encountered in Ontario in lengthy trials, and a series of recommendations to improve efficiency. The report can be found at http://www.attor- neygeneral.jus.gov.on.ca/english/ about/pubs/lesage_code/. The LeSage/Code report rec- J ognizes that not utilizing the most senior counsel increases the bur- den on the justice system. LeSage and Code point out that senior counsel are more likely to be fo- cused and efficient. They want highly qualified defence lawyers to be brought back into the legal aid plan, and they also want more se- nior Crown counsel on big cases. Once upon a time in the jus- tice system a murder trial took one or two weeks, but now many trials take six months. It did not strain the lawyer's practice ustice Patrick LeSage and Michael Code recently re- leased their report on mega- Taming the mega-trials in Ontario A Criminal to take a case on for a low fee. It has become a vicious cycle, and, the longer the trials are expected to take, they point out, the less likely senior coun- sel are to take them on with a legal aid certificate. They note that there are three major causes: the Charter of Rights and Freedoms, the reform of evidence law by the Supreme Court of Canada, and the addi- tion of many new complex provi- sions to the Criminal Code. They found that there are two ways in which Legal Aid Ontario may have contributed to long trials: the erosion of the tariff over the past 20 years, as cases grew more complex, and underutilization of statutory powers to regulate the quality, efficiency, and effective- ness of the work being done. LeSage and Code recommend that special rates be created for these complex cases. Ontario's top current legal aid rate, whether the charge is shoplifting or murder, is $96.95 an hour. They note that in Mind By Rosalind Conway British Columbia there is an "en- hanced fee rate" of $125 an hour, and there are significantly higher rates, which apply in "exceptional matters." There is a short list of eligible lawyers for the latter. They perceive a need to encour- age mentoring through the bar and the Criminal Lawyers' Association, rather than through the Law Soci- ety of Upper Canada. One recom- mendation is to increase remunera- tion for junior counsel to attend trial with senior counsel. The fact that the LeSage/Code report on big trials came out in the same year as Prof. Michael Trebil- cock's Report on Legal Aid Review 2008 gives the defence bar some guarded optimism that rates may improve for the most serious cases www.lawtimesnews.com (see http://www.attorneygeneral. jus.gov.on.ca/english/about/pubs/ trebilcock/). 2008 also saw the re- lease of the Report of the Inquiry into Pediatric Forensic Pathology in Ontario (see http://www.goudge inquiry.ca/). Justice Stephen Goudge's re- port on now discredited child pathologist Dr. Charles Smith rec- ommends significantly increasing hourly rates for lawyers taking the child homicide cases, and that the eligibility criteria for lawyers taking those cases be defined. Bifurcated trials have become a problem, slowing down the try- ing of terrorism cases. Terrorism cases have become protracted be- cause of the procedure in s. 38 of the Evidence Act, which does not permit the trial judge to make de- cisions on the disclosure and use of evidence affecting national se- curity interests, and even permits interlocutory appeals. There is the eminently practical suggestion that the powers in s. 38 be within the jurisdiction of the trial court. February 2, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorim- er@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905-713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905- 713-4337 sshutt@clbmedia.ca or Kristi O'Connell at 905-726-5448 kroconnell@clbmedia.ca. Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Other suggestions include early assignment of trial judges, or amending the Criminal Code to permit a pretrial judge to make binding rulings in the trial, as he would be deemed to have started the trial, but would not be seized with it. They point out that once the defence or Crown has a ruling on an important issue, the case may settle and trial time is freed up. The LeSage/Code report states that there is a broad con- sensus from the Crowns, the de- fence, the police, and from the judiciary that the solutions they propose should be implemented. If they are, one can expect more interest from the leading mem- bers of the bar, both Crown and defence, in taking on these seri- ous matters, with great benefits in time savings for all partici- pants in the justice system. LT Rosalind Conway is a certified spe- cialist in criminal litigation. She can be reached at rosalind.conway @magma.ca.