Law Times

Law Times • January 22, 2018 Page 7 www.lawtimesnews.com Lawyers should look closer at poverty BY FATHIMA CADER W ith the commencement of a new school term, I've been thinking of how, when I was in law school in British Columbia, at least one of my classmates relied on social assistance. Years later, when I was teaching in a law school in Ontario, one of my students wrote an essay describing being unable to afford groceries. Each student struggled, in their respective law schools, to access university funds. Information about bursaries was inac- cessible and application deadlines were often fatally early, to say nothing of barri- ers posed at the outset by deregulated and increasing tuition fees. Meanwhile, I sat through advice sessions on how long my skirt should be, alienated by how casu- ally my school was normalizing high-end stores some students couldn't afford. On-campus interview preparation ses- sions remain a fixture in law schools, caus- ing students at the University of Ottawa to say, in a 2014 open letter addressing these sessions, that "the focus on appearance over competence is harmful to women, trans and gender non-conforming people, and students who are economically dis- advantaged." Even after graduation, fi- nancial barriers persist. I recall how, soon after getting called to the bar in 2014, friends interested in im- migration and criminal law had to decide whether or not to accept positions at highly reputable firms that paid ap- proximately $45,000 per year at that time. I hope those salaries mark the lower end of legal pay. The law has recognized that wealth in Canada is unequally distributed. Take, for example, Sparks v. Nova Scotia (Assistance Appeal Board), 2017 NSCA 82, where the Nova Scotia Court of Appeal said, "Poverty rates for racial- ized families are three times higher than non-racialized families, with 19.8 percent of racialized families living in poverty compared to 6.4 percent of non-racialized families. "Indigenous women and racialized women experience much greater rates of poverty; 37 per cent of First Nations wom- en (off reserve) and 28 per cent of racial- ized women [experience poverty]." A 2013 Department of Justice report also said that, despite falling crime rates, Canada's prison population is growing and that 36 per cent of women sentenced to pro- vincial and territorial custody in Canada are indigenous. Yet, the Law Society of On- tario reported in 2013 that only two per cent of Ontario lawyers are indigenous. For myself, the clinic sys- tem felt like a haven where lawyers could do social justice work relatively free of financial constraints. But as the weather drops to deathly lows, I recall how, when I was a clinic lawyer, the single most com- mon question clients asked me was how the law expected them to live off Ontario's social assistance rates. I could only tell my clients what was the law, not what was just. In 1996, in Falkiner v. Ontario Min- istry of Community and Social Servic- es, 1996 CanLII 12495, the Ontario Divi- sional Court said, "Ontario social assis- tance rates . . . are generally recognized to be below measurements of poverty used by the social policy community across Canada." The same decision noted that, "Care- ful planning of all expenses is a necessity since social assistance recipients live close to the edge and are unable to save for con- tingencies." Twenty-two years later, the Ontario Disability Support Program still provides shelter allowances that are unlivable. It allocates $489 per month for a sin- gle person's rent, despite the Ministry of Housing reporting in 2017 that the aver- age market rent for a bachelor apartment in even a smaller city such as Thunder Bay is as high as $608. More troubling still is the fact that an urban centre such as Toronto did not track homeless deaths until January 2017. It was then discovered that nearly two people die on the streets every week, at a median age of 51. This chasm matters. It should only get harder to swallow that so many of us have so much when so many others have so little. We have so much to fight for — a living wage, affordable education and dignified housing for all. LT uFathima Cader practises human rights and labour law in Toronto. She can be reached at cader@mmwlaw.ca. Paradigm shift needed BY DAVID FRENKEL T he world is changing and we have to keep up. The dangers our children face today are no longer the issues of yesterday. Social media platforms such as Face- book, Snapchat and Instagram drive the interactions and communication of our youth and us. What if there were grade school and high school classes teaching a wide range of topics such as the ef- fect of bitter divorces on children, the dangers of sex trafficking and the importance of developing a child's self-esteem? We think such classes are not only necessary but critical. Let us explain and illustrate. Challenges children face include suffering repercus- sions from bitter divorces and self-esteem issues that can lead to depression, drug use and suicide. Family law lawyers and other professionals, such as the staff at the Children's Aid Society, see how these ail- ments affect our communities. Consequently, it may be time to have a conversation about whether we as professionals could utilize our experience and knowledge to teach and warn children before the harmful effects occur. A paradigm shift in the way we approach the above challenges may be necessary since these dangers are real and not simply confined to poor and marginalized communities. They touch children and young adults regardless of race, socio-economic status or in which neighbour- hood they live. Consequently, we must approach these issues through a lens of prevention and proactive education; otherwise, we will continue just picking up the pieces when it is simply too late. For example, the end result of children being affect- ed by a high-conf lict divorce starts off with much more innocent beginnings. Take Gordon v. Gordon, where a married couple who both love and care for their two children, aged 9 and 12, decided to separate after nine years of mar- riage. The animosity was so bitter that it required two sep- arate trials within three years. After the first trial, the mother was ordered to be the primary caregiver of one of the children and the father was ordered to be the primary caregiver of the other. Justice Anne Trousdale ordered that the parents have joint custody with decision-making, but she also noted that the continuation of the parents being stub- born and opinionated "put these children at risk of damaged development." In the second trial, the parents did not learn their lesson and continued to fight over custody. Justice John Johnston indicated that each parent blamed the other for the acrimony, the grandparents were embroiled in the fight and neither parent had in- sight to recognize they were both part of the problem. Each parent was ordered to be the custodial parent of the child in their care, but they were also ordered to attend counselling. As Johnston wrote, "Involving children in the par- ents' battles in high conf lict cases is 'akin to sprinkling poison on the Kids Cornf lakes every morning.' "While the parents in this case would not think they are harming their children, their conf lict is doing just that." But what about something as subtle as a child's self- esteem? How important is that to develop? In a recent deci- sion out of Nova Scotia, Kelly v. Benoit (2017), 2017 NSSC 212, a woman left Halifax with her child and went to Saskatchewan to escape an abusive relationship that included the child's father's issues with addiction and mental health. The father denied the accusations and started a court application to bring the child back. In permitting the child's mother to stay in Sas- katchewan, Justice Beryl MacDonald took note of the father's parenting deficiencies, which included his self- centredness, lack of empathy, lack of insight into his mental illness, his use of name-calling and degradation to express his frustration and his propensity to blame others without any introspective examination of his contribution to what had happened. MacDonald said, "Demeaning and degrading in- sults can destroy a person's self-esteem and can con- tribute to feelings of uselessness, worthlessness and self-blame. "This can lead to depression, anxiety, and physical illness. "As a result, a parent's caregiving ability may be un- dermined. "Children who know or become aware of one par- ent's propensity to demean, belittle, dominate and control the other parent are placed in an unhealthy situation . . ." The importance of maintaining one's self-esteem was echoed by Justice Alison Harvison Young in Bolla v. Swart (2017), 2017 ONSC 1488, 2017 CarswellOnt 3659. Although not finding the evidence to support the mother's claim in the case, Young wrote that certain long-term emotional abuse may have harmful effects. "Like repetitive movement injury, 'emotional abuse' consists of repetitive neglect, put-downs, name-calling, blaming, rejection, creating doubt, degradation, public embarrassment, and other 'systemic' attempts to erode a woman's self-esteem and self-worth," she wrote. If only we had classes that taught lessons about self- esteem, mental illness and the effects of high-conf lict divorce before their effects permeate our children. So many inoculating seeds could have been plant- ed and nourished in the minds of children and ado- lescents whose brains were still developing and mal- leable. We, as professionals and future educators, would have many more opportunities to keep them safe in a world with so many risks. So, what is the solution? Maybe it is time for family law lawyers, psycholo- gists and social workers to stop missing important op- portunities in educating our youth during their most formative years on topics that education and therapy after the fact helps too little too late. Maybe it is time to re-evaluate where our resources should be better spent in our schools and where they can have more lasting effects on child development with a preventive rather than a reactive approach. Maybe it is time for a paradigm shift for family law lawyers and professionals to help children not just in their regular line of work but rather to regularly vol- unteer in the schools, in concert with school adminis- trators, to teach students critical lessons based on their experiences with the youth that were not as lucky to escape the above-mentioned calamities. The risks are simply too high in continuing to miss such opportunities. LT uDavid Frenkel is a lawyer at Gelman and Associates, practising exclusively in the area of family law for the last 10 years. This article was also written in collabora- tion with Mahesh Prajapat, chief operating officer of the Toronto Children's Aid Society. u SPEAKER'S CORNER COMMENT Law Rebooted Fathima Cader

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