Law Times

Law Times • April 8, 2013 Page 3 NEWS Report suggests mandatory Third-party disclosure ordered in mediation for family litigants businessman's family law matter BY ANASTASIA MOSKVITINA BY ANASTASIA MOSKVITINA For Law Times W hen it comes to fixing Canada's family law system, the real issue isn't identifying the problems but implementing the solutions, according to a new report. There's an "implementation gap between our vision and the reality on the ground," says Jerry McHale, a law professor at the University of Victoria and chairman of a new family law working group report produced by the National Action Committee on Access to Justice in Civil and Family Matters. "There are a large number of reports out there addressing these problems" but "not only is there a large number of them, they all have common findings and recommendations" and a "universal theme," says McHale. The latest report's recommendations include emphasizing informal services, reallocating funds, increasing legal aid, and providing better education for lawyers and law students in the field of family law. The recommendations address the bar, the courts, and all levels of government in a bid to address the "scale of unmet family law needs," says McHale. The bulk of the problem relates to funding. "What we're recommending ideally is new money," says McHale. "It would be a matter of taking some money out of the back end and putting it in the front to deal with people who are just coming into the system." Among the 31 recommendations, the report emphasizes the need for collaborative programs that would settle more disputes out of court. "It doesn't mean the courtroom shouldn't be there," says McHale. "We should regard the courts as a valued but last resort." To make that happen, the report suggests that after filing initial pleadings, parties should have to participate in one mandatory mediation session before going to court. The report also recommends having one judge preside over all proceedings in a family law case and suggests the importance of having members of the bench who have experience in collaborative conflict resolution. When children are involved, it's important to keep in mind that the "skill with which the system handles family law disputes has long-term consequences," says McHale. Another problem is that family law doesn't receive as much public or media attention as criminal law. "This heightened interest fuels criminal law reform efforts and often translates into funding support for criminal justice as a priority over family law," the report says. The family law working group document is one of four reports produced by the National Action Committee on Access to Justice in Civil and Family Matters chaired by Supreme Court Justice Thomas Cromwell. LT "He has an information and accessibility advantage over Ms. Loeb in this action where the very issue is he Superior Court has his past and current level of income." ordered third-party disWithout the disclosure, "Ms. closure in the case of a Loeb would have been extremely wealthy businessman in disadvantaged" and "her expert in a family law dispute with his wife the case can't complete his expert over the amount of his income. report without receiving, review"In family law, transparency is ing, and analyzing the informakey, especially when there is an ac- 'My client can't proceed to tion," says Stangarone. cessibility advantage," says Michael trial fairly without disclosure,' "If there is shifting of income to Stangarone, counsel for Lori Loeb says Michael Stangarone. limit the exposure of Mr. Loeb, it is in Loeb v. Loeb. most likely to involve his father or "We're trying to determine his true means to two brothers," wrote Kane. "It is unlikely that Mr. pay spousal support. This case is significant be- Loeb's father or brothers would deny him access cause it orders third-party disclosure when the to the books and records of these entities." litigant is hiding behind family members." The couple separated in 2004. Lori curAccording to a March 22 endorsement, Ar- rently receives $15,000 a month based on an thur Loeb originally claimed his income to be agreement in 2007 when Arthur declared $500,000, but Lori has maintained the amount his income at $470,000. The couple went is significantly higher because much of his mon- through mediation but wasn't successful and ey is in his family's business carried on through went back to court in June 2011. The disclovarious operational and holding companies, sure ordered on March 22 is for documents trusts, and joint ventures with third parties. Her Stangarone says he has been asking for since experts say Arthur's income could in fact be December 2011. more than $1 million. The documents in question include general "My client can't proceed to trial fairly without ledgers, share loan schedules, tax slips, and sumdisclosure," says Stangarone. maries for Arthur, his father, and his brothers, On March 22, Superior Court Justice Paul according to Stangarone. Kane ordered third-party disclosure by Kamlo Kane rejected the argument by Arthur's Holding Ltd. "What is fair, relevant, and needs counsel Andrea Camacho that the information to be produced increases with the complexity was irrelevant. "Relevancy will be clearer to the of the financial business circumstances of the trial judge," wrote Kane. "A court at this stage parties," he wrote. should be cautious against access to informa"Mr. Loeb has access to all the information tion which may be relevant unless its lack of relsought and more," he added, noting the corpora- evance is apparent or established." tions include entities of which Arthur is a shareLaw Times couldn't reach Camacho for holder, employee, and officer or director. comment last week. 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