Law Times

Law Times • march 12, 2012 COMMENT PAGE 7 with the process (see "Lawyer disturbed by med-arb," Jan. 16). I think his letter deserves a response from a mediator- arbitrator. I agree that counsel and parties should not use a process that they are not comfort- able with. Mediation-arbitration should be a process that is freely chosen by counsel and the parties aſter a full explanation of the process and the alternatives available. Let me firstly correct some errors. Arbi- trators who resolve family law disputes in Ontario are indeed regulated by the regulations promulgated by the attorney general shortly aſter the Family Statute Law Amendment Act was passed. Those regulations require specific training and updating of it every two years. Most arbitrators are also members of professional bodies such as the ADR In- stitute of Ontario, which has a code of conduct. Virtually all mediators are mem- bers of the Ontario Association for Family Mediation, which has a very specific code of conduct and also requires training. Ac- credited family mediators under the On- tario Association for Family Mediation must take very extensive training during which they are mentored and must follow a strict code of conduct. The fact is that counsel and parties do not choose mediators-arbitrators unless that person has experience in the area under dispute and they are prepared to repose confidence in both the mediator- arbitrator and the process. Lawyer touts benefits, responds to critics of med-arb G ary Joseph has set out his per- sonal views as to why he es- chews mediation-arbitration and why he is uncomfortable Although statistics are not available, anecdotally I am aware that the vast ma- jority of mediations in the med-arb process actually settle and there is no need for arbitration. If there is to be arbitration aſter a media- LETTERS.indd 1 tion was unsuccessful, it is always separated in time from the mediation process. Medi- ators do not refer to the matters heard dur- ing the mediation and they, like judges, are able to disabuse themselves of evidence that is inadmissible. Judges are frequently called upon to lis- ten to a lengthy voir dire in which they ul- timately rule the evidence that they heard during it is completely inadmissible. No one complains that that somehow influ- ences the judge in the outcome of the case. So it is with mediators. They may well hear evidence in mediation that might be inadmissible in a family law trial, although quite frankly, it is likely that most things said at mediation could ultimately be proved in a formal arbitration. Mediation-arbitration works because essentially the parties want it to work. The reason the parties choose mediation- arbitration is they want a process that will bring certainty, finality, and an expeditious resolution to their family law dispute. They are uncomfortable with the court process because it takes too long, costs too much, is paper intensive, results in a significant number of appearances, and in difficult cases, oſten leads to a series of appeals. The court process, meanwhile, is not con- fidential and parties oſten do not wish to have the intimate details of their life published in a u Letter TO THE EDITOR law report or in a legal newspaper. Of course, there is an important place for the court system, but the sad fact is that many use it because they want to engage the other spouse in a public and expensive forum. Family law is unlike corporate and commercial law in the sense that both par- ties may not wish a resolution at the same time. Quite frequently in family law cases, one party would rather litigate than settle regardless of the offers. Mediation gives people an opportunity to explore their differences in a controlled setting with someone who has family law experience. That person can not only help the parties explore their differences but also provide some neutral evaluation when it is called for in order to keep the par- ties' expectations on a reasonable plane. Coupled with arbitration, it is a powerful tool that, as experience has shown us, pro- motes settlement. Arbitrators, meanwhile, are required to follow the rules of natural justice, the rules of evidence, and the case law from Ontario and Canada. I agree with Joseph that we need a uni- fied family court, but even that will have some of the same problems that are now systemic in the family law system. The federal courts of the United States have always had one judge preside over all aspects of the case including the trial. Although that is foreign to our system, it 3/1/12 4:39 PM seems to work reasonably well there and is not essentially different from the private process of mediation-arbitration. I also agree with Joseph that there will be times when a specific arbitrator should not be chosen when that person is engaged with one of the counsel in other litiga- tion. However, there are many mediators- arbitrators to choose from and since the process is entirely consensual, until the parties sign a mediation-arbitration agree- ment, there is no reason that this kind of conflict should arise. I reject Joseph's suggestion that arbitra- tors who resolve cases following media- tion do not do so on a principled basis. The fact is that, at the end of the day, more and more counsel and parties are turning to this process because of the benefits out- lined above. There are always some draw- backs to every dispute-resolution system, but many of the ones that concern Joseph can be completely minimized by a careful choice of mediator-arbitrator and one par- ticularly suited to the particular case. On a final note, there is nothing to prevent counsel from agreeing that one person will mediate and a different per- son will arbitrate. While that is indeed an available process, it is interesting to specu- late as to why so few counsel choose that alternative as opposed to the hybrid option of mediation-arbitration. I suspect the an- swer lies in the fact that parties and coun- sel really want one-stop shopping rather than the emotional strain and financial costs of a do over. Philip Epstein, Epstein Cole LLP Toronto BY JOSHUA JUNEAU For Law Times H osting children's birthday parties, neigh- bourhood barbecues or family reunions without first acquiring a licence from the provincial government may be an offence u SPEAKER'S CORNER that can result in a penalty of up to $2,000 and/or six months in prison. That's per offence. I didn't believe it either. According to the Ministry of Children and Youth Services, a person requires a licence as per the Day Nurseries Act for operating a day nursery, the defin- ition for which is "a premises that receives more than five children who are not of common parentage, pri- marily for the purpose of providing temporary care . . . where the children are . . . under 10 years of age." There are hundreds of unlicensed home daycares in Ontario that mostly provide after-school care for children while their parents complete their work day. Often, such daycares involve getting together in play groups where one caregiver hosts other children at a private residence. Hosting play groups has the advantage of increas- ing educational opportunities for children by allowing many caregivers to split the cost of programs that would otherwise be too expensive. For example, in Ottawa, some proprietors such as Little Ray's Reptile Zoo specialize in providing hands-on activities to daycares. In fact, Centrepointe Childcare Services in Ottawa says caregivers are supposed to get together because "caring for children in isolation is not the best environment" for them. The ministry claims it's not trying to restrict play groups per se but is merely trying to limit them in private homes. Surprisingly, it encourages childcare providers to plan "activities off the premises" and take children to public places such as an Ontario Early Years Centre designed for groups of people to gather. This distinction of where play groups are acceptable is artificial because it assumes that a home is unsafe as compared to a public place such as a mall, park or busy downtown area. A home provides a confined area devoid of strangers and unknown risk where care- givers can watch children in a controlled environment. The ministry's distinction, then, is false. Perhaps most perplexing is the fact that although the ministry continues to lay charges under the act, mostly against unlicensed daycare operators, no one is aware of its interpretation. When confronted with the definitions provided by the ministry, one Ottawa-based, ministry-funded Early Years Centre goes as far as asserting that "according to this new interpretation, the greater part of independent and agency-affiliated home-care providers have been breaking the law for years." But what about freedom of association? That's the protected right under the Charter of Rights and Freedoms to come together and collectively pursue a common purpose. The Supreme Court of Canada has affirmed that freedom of association should be given a broad inter- pretation by considering whether a particular activity of an association "is to be constitutionally protected." In Ontario, the province would have you believe a private homeowner isn't entitled to determine who may visit. This is the role of your government. According to the current policy framework, a homeowner may have to turn away invited guests or those who show up unannounced because they haven't acquired the requisite licence. Here the ministry is seeking to control a basic right: the right to invite guests over to a personal residence for a social engagement. But the courts have said that s. 2(d) not only protects the freedom to form an associa- tion "but also to exercise an activity which an individ- ual is permitted to do." Thus, because daycare providers have the individ- ual right to operate a daycare, they should also have the collective right to associate with others doing the www.lawtimesnews.com same thing. To put it another way, inviting guest daycares over to visit is enabling a group to func- tion collectively in an activity that any individual provider is legally entitled to do. The ministry's interpretation is not saved under a s. 1 analysis because such an interpretation is unfair and based on irrational considerations. Hosting a play group isn't unsafe if each participating daycare is within the statutorily prescribed limits. The act, then, may be nothing more than a govern- ment cash grab. Consider that daycare providers who wish to regis- ter their operation with the ministry are subject to yearly registration, fees, and a home inspection by the government. They must also have equipment and furnishings in their home approved by the government and face increased insurance premiums, registration of staff members, and other requirements. All of that comes at a cost to the small-business owner. The ministry's interpretation, in fact, has recently attracted criticism from the Canadian Civil Liberties Association. It believes, among other concerns, that the act seems to unjustifiably "preclude a parent or grandparent from looking after six of their nieces and nephews or grandchildren" for the afternoon. What would George Orwell say about that? The government, therefore, should be interpreting the definition of a day nursery using a more common- sense approach. This includes restricting it from deter- mining a homeowner's right to decide who they may have over as invited guests. In the alternative, because the ministry's interpreta- tion of a day nursery violates a homeowner's Charter- protected right to associate freely, it should be struck out in its entirety. Until that time, homeowners beware: You may require a licence if your child wishes to have a sleepover party, work on a group project for school, host a choir practice or a play basketball game in your driveway. LT uJoshua Juneau is currently completing his articles with Michel Drapeau Law Office in Ottawa. A call to curb Ontario's insatiable voyeurism through Day Nurseries Act

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