COVID-19 school disputes, parenting coordinators, reports from trial judges for appeals, management fees and interest


This week on Legally Speaking with Michael Mulligan:

As schools attempt to reopen for in-person instruction, amidst increasing COVID-19 infection rates, disputes between separated parents over sending children back to school have started showing up in court.

Disputes of this kind are analyzed based on the best interest of the child.

In a recent case of this kind, despite the increased risk to a grandparent, and mother of the father’s new domestic partner, a court-ordered that the child return for in-person instruction.

The court noted that both parents were first responders: a nurse and a police officer. This work already resulted in an increased risk of COVID-19 infection for the potentially impacted family members.

The child also had some special needs and the court found he could benefit from the social interaction made possible by returning to in-person school.

Also discussed is the use of parenting coordinators to resolve minor parenting disputes that otherwise end up in court where there is high conflict family litigation.

Parenting coordinators can be appointed by a court to settle minor parenting disputes and to serve as an intermediary for communications between separated parents and, if necessary, correct them for tone and contents.

Also discussed are the concepts of pre and post-judgment interest as well as the addition of management fees for lump sum awards.

Management fees are intended to pay for the professional financial management of lump-sum awards. There can be a spectrum of such assistance, which can be necessitated in circumstances such as where a plaintiff suffered a head injury and would, as a result, be incapable of managing an award to pay for their future needs.

Follow this link for a transcript of the episode and links to the cases discussed.

Legally Speaking with Michael Mulligan is live on CFAX-1070 every Thursday at 10:30 am.


Automated transcript – Legally Speaking Sep 10, 2020

Adam Stirling [00:00:00] Time for Legally Speaking on CFAX 1070, joining us, as always. Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. How are you?

Michael T. Mulligan [00:00:08] I’m doing great. Great to be here.

Adam Stirling [00:00:10] It is the first day of school for my young people here in the province of British Columbia. Family law and conflicts between parents concerning in-person or online school on the agenda today.

Michael T. Mulligan [00:00:22] Yes, indeed. So, it’s the first day here for us. And different parts of the country have, of course, opened up at slightly different times, producing now some litigation concerning whether it is desirable for children to go back to school, in person, as opposed to doing something online or in some other way. And we’ve seen over the past two weeks or so several cases out of Ontario, and there are cases that arise where you have, of course, separated parents and shared responsibility for parenting. And you have one of the parents who wants the child back in school and the other parent saying, oh, my goodness, that puts the child or other family members at risk. And one of those cases came recently out of the Ontario Supreme Court. And it was a circumstance of a mother and father, who were separated. It was the son, I believe was nine years of age, and the mother wished to have the child returned in person to school and the father didn’t want that. Wanted him to continue with online schooling, which is what had been done at the end of the last school year. And the fact pattern was made more complicated by a few factors, including that the father who wished to have the child continue with online education, had a mother who was immunocompromised and at heightened risk if she was infected. And as well, his girlfriend’s mother, whom they lived with, had asthma and was also at greater risk if she became infected. Things were further complicated by virtue of the fact that both of the parents were first responders. The father, a police officer, and the mother a nurse. And so, it became one of the considerations was the complication of being able to manage shift work if the child was not in school. So that was the matrix. The judge had to sort out and the approach the judge took. And it’s the same approach that a judge would be required to take in British Columbia is to assess what should be done based on the best interests of the child. Right.

Adam Stirling [00:02:50] Okay.

Michael T. Mulligan [00:02:51] That that’s always the watchword when making decisions like this concerning children.

Adam Stirling [00:02:57] Yes.

Michael T. Mulligan [00:02:58] And so that has some significant implications. Right, because, for example, the judge didn’t accept the evidence about the increased risk to the child’s grandmother and the risk posed to the mother of the father’s girlfriend. Right. Both of whom would be put in some increased jeopardy as a result of the child going to school and potentially coming home and infecting them. The girlfriend’s mother lived with them, the grandmother did not. And the judge concluded that. While those people may be at increased risk the child, in this case, who is another factor, the childhood has ADHD and there is some evidence that the child would benefit from in-person interactions at school.

Adam Stirling [00:03:51] Hmm

Michael T. Mulligan [00:03:51] And so the judge had to weigh up what might be bad for the grandmother and potential new mother in law. Right.

Adam Stirling [00:04:01] Yes.

Michael T. Mulligan [00:04:01] Versus the interests of the child. And then the judge in this case came down in favour of having the child returned to school as the mother was asking for, despite the risks posed to the child’s grandmother and the potential mother in law. The judge referred, as well, to factors that included that both parents were first responders of the police officer and a nurse, and so they both, of course, had an increased risk of contracting COVID- 19, which could impact both the child and the grandma and the potential mother in law. And the judge also had to take into account, and did take into account, what the current medical circumstance was in Niagara in Ontario, where rates have been very low there. So clearly a very challenging balancing act. And really, it points out how these things have to be approached, which is what’s in the child’s best interest? Even if, as in this case, it may be contrary to the interests of the grandmother or future mother in law,.

Adam Stirling [00:05:10] Yeah.

Michael T. Mulligan [00:05:10] Because both of those people, because of their medical conditions, are put in greater jeopardy. But the judge in making that decision concluded that the child’s best interests have to be paramount, and as a result, despite the concerns of the father, the child will be returning in person to school. And so hopefully the grandma and the future mother in law will remain safe. But that’s how the court’s both there and here, would need to analyze those kind of difficult conflicts, always from the perspective of what’s in the best interest of the child, even if it may be contrary to the interests of other people.

Adam Stirling [00:05:51] You and I have spoken in the past about how family law practitioners and of course, I don’t want to suggest that any litigator might have an easier or tougher job than any other litigator, but family law tends to be where passions will arise at what would seem for outside observers to be as not consequential as the participants themselves. This can make these sort of disputes particularly protracted, amongst other things. There are more than, or is more than one way to solve them, though, isn’t there?

Michael T. Mulligan [00:06:19] There are. And there are continuous efforts to try to help resolve what are referred to as high conflict, family litigation cases.

Adam Stirling [00:06:31] Yes, yes.

Michael T. Mulligan [00:06:31] and what happens is happily, most family law cases aren’t that most people act reasonably and realize, you know, we’re in this for the kids and, you know, try their best to resolve things. But there is a small percentage of cases that consume a vast quantity of resources, both of the parents and of the court system. And there is one of those cases recently dealt with in B.C. where the judge described some of that background in fighting legal fighting that had been going on for the last 10 years following the breakdown of a marriage where there were children involved.

Adam Stirling [00:07:10] Yes.

Michael T. Mulligan [00:07:11] And it was described as including at least 10 judges of the B.C. Supreme Court had made decisions. The case involved 6 large volumes of material, 30 affidavits, many exceeding 130 pages, 10 binders of pleadings and describe the eleven-year-old child as having never known anything in his life other than parental strife. And so clearly, that would be the sort of case where you would describe as, high conflict.

Adam Stirling [00:07:40] Yes, yes.

Michael T. Mulligan [00:07:41] If you could only imagine the cost for the parents in addition to the cost to the whole justice system. And those are also the kind of cases which are likely to produce these sort of, you know, school coded conflicts. Right. Of course, that would be the sort of thing that might well produce an argument. And one of the approaches have now been getting some greater traction in British Columbia is the concept of using a parenting coordinator. And the idea there would be that a judge could appoint a parental coordinator. The cost of which would be paid by the parents, of course, and some formula.

Adam Stirling [00:08:18] Yes

Michael T. Mulligan [00:08:19] And the idea is that when there’s a dispute over things which would be potentially relatively minor, like, you know, can they pick up a drop off at, you know, Wendy’s and not the McDonald’s parking lot or, you know, literally these are the kinds of things people fight over. Right.

Adam Stirling [00:08:36] hmm.

Michael T. Mulligan [00:08:36] You know, where can we change weekends, so no child can see grandma. Right.

Adam Stirling [00:08:40] Yes.

Michael T. Mulligan [00:08:40] And the kind of things was literally would produce affidavits and hearings and courts. Great. Right. At great expense. And the idea would be to assign a parenting coordinator so that those kinds of more minor disputes could be sort of arbitrated and decided by that person in a prompt fashion, rather than having every minor dispute about whether, you know, what time Johnny is getting off soccer practice and who’s picking him up. And, you know, can he, go to the, you know, out of town hockey game or whatever, used to occur prior to COVID-19, have the parenting coordinator decide those issues in a summary way after hearing from both parents. And the idea would be to keep things out of court, reduce the costs to the parents and reduce the cost to the justice system, just because of how much time these cases consume.

Adam Stirling [00:09:31] hmm.

Michael T. Mulligan [00:09:32] And so in that case, they mentioned where you had these parents that have been fighting for 10 years over all manner of things. The most recent application involving one of them asking for 10 different orders and I think the other one asking for 5different orders, the overall kinds of things. The judge in that case did appoint one of these parenting coordinators. And I think that’s an example of some good sort of creative development in that area of the law trying to deal with that small portion of cases, that takes up just so much time and hopefully as a result of that, the 11 year old child will eventually know something in his life other than his parents endlessly going to court to fight about drop off times and this sort of thing.

Adam Stirling [00:10:17] Indeed. Now, I wonder if the decisions of that coordinator may be subject to judicial review. And it sort of, we end up back at square one.

Michael T. Mulligan [00:10:25] That’s quite possible, right. You mean ultimately you’re not going to be able to prevent any mechanism for that to be reviewed. But the idea would be that many of these things, hopefully, if decided by some dispassionate third party, would be accepted and people could move along from it. So, it’s not going to solve anything, everything. Right. And if you have people that are just bound and determined to fight with one another, they’re going to find some way to legally fight with one another. Right.

[00:10:58] You know, I sometimes say I’m happy about the fact that I practice criminal law and not family law because some of the underlying issues in family law are things like, you know, your ex-spouse doesn’t love you anymore and there’s no court application that’s going to solve that. Whereas in the field of criminal law, things are a little bit more well-defined and I’m more likely to be able to help.

Adam Stirling [00:11:18] Indeed. I want to take our break here. Let’s do that. All right. We’ll continue with Legally Speaking. Coming up in just a moment, Michael Mulligan for Mulligan Defence Lawyers continuing as we go through the legal stories of the week.

[00:11:30] COMMERICIAL.

Adam Stirling [00:11:30] As we continue our conversation with Michael Mulligan from Mulligan Defence Lawyers, including the possibility of using a coordinator to solve relatively minor disputes. And again, as Michael has helpfully elucidated for us, when we say minor dispute, we mean minor, we mean should the drop off for the child be at the Wendy’s parking lot or the McDonald’s parking lot or something similar to that? Michael, anything else on that matter before we move on?

Michael T. Mulligan [00:11:54] Well, I think, as I mentioned, we’re likely to see disputes arising over things like returning to school and whether a child should stay in school bubbling up through the family justice system. Right. We’ve mentioned these cases from Ontario that have started, and we also know have a little bit of experience watching how attempted school restarts, including in Alberta and other provinces, have gone so far. In Alberta, of course, there about a week or so ahead of us in terms of reopening of schools. They’ve already sent hundreds of children home to self-isolate, as a result of potential exposure in school. And I think this morning they just announced, two, what they describe as outbreaks at schools. So, I understand that to be transmission and for multiple people in the school that have been infected. So you can easily imagine how that circumstance is likely to produce a great pressure on the family justice system to, to resolve disputes between parents who have competing views about, you know, what is in the best interests of a child. And you can also imagine how some of those concerns would have some particular high degree of urgency.

Adam Stirling [00:13:15] Yes

Michael T. Mulligan [00:13:15] And it may not seem satisfactory. You say, look, we’re going to be hearing in 3 weeks in front of a Supreme Court Judge, if somebody is concerned about, you know, should Johnny continue going to the school when, you know somebody else in the class or down the hall has been infected with COVID. So that model of using a parenting coordinator might help as well with some of those urgent matters where a decision has to be made more quickly than what might be possible if you have to go into court and get before a judge with all the attendant material and process that that entails. So, I think that’s a model that’s likely to get more traction in our current context.

Adam Stirling [00:13:57] What’s next on the agenda?

Michael T. Mulligan [00:14:00] Next on the agenda, I think a there are two other interesting things if the time permits. One, one of those decisions actually just came out this morning and this was a decision over the B.C. Court of Appeal, that referenced an interesting and now little used section of the criminal code, which permits, on an appeal, the Court of Appeal to order the trial judge to produce a report about some subject matter that would assist in the appeal. And that section of the Criminal Code is 682 (1). One is one that used to be used with greater frequency before we had things like tape recorders or digital recorders and transcripts. And so, you would have an appeal and potentially no transcript of what exactly went on at the trial. And so, this section was intended to allow the Court of Appeal to request of the trial judge a report about something, so that the Court of Appeal could address it. Here are the interesting circumstance, was it was a conviction in a tragic case, was a conviction of first-degree murder with a woman convicted of murdering her infant child.

Adam Stirling [00:15:16] mhmm.

Michael T. Mulligan [00:15:16] And one of the issues on appeal were gestures allegedly made by one of the jurors to the other part of the family that suggested sympathy with them during the course of the trial. And so, there was apparently some evidence of that that the accused was presenting on the appeal. And so, the crown tried to apply for one of these now little used orders to ask the judge, whether the judge observed these gestures. And ultimately, the Court of Appeal concluded that that would not be helpful or appropriate here because there was evidence of what was being referred to already. And because if you simply have the judge say, no, I didn’t see anything that wouldn’t necessarily advance the ball very far. I think given that these were alleged gestures to somebody or family members in the gallery. So, an interesting case and an interesting reference to that now, little used, section of the Criminal Code.

Adam Stirling [00:16:17] I’m curious if health records existed like transcripts. What would the judge rely upon when the request was made to produce the report? Merely memory.

Michael T. Mulligan [00:16:26] Yes. Or notes. Judges would have bench books where they would be recording their own notes of things that were done.

Adam Stirling [00:16:34] Okay.

Michael T. Mulligan [00:16:35] And you would have had in the past sort of appeals based on sort of a stated issue by the trial judge.

Adam Stirling [00:16:40] Okay

Michael T. Mulligan [00:16:41] And you would, of course, have the reasons for the trial judge as long as those were produced in writing. But, you know, happily, thanks to modern technology, we’ve advanced a fair bit from there. It wasn’t actually that many years ago that we had in British Columbia court recorders or reporters who would be typing out using a sort of a shorthand machine. A live transcript of what was going on in cases, and they could read them back or ultimately produce a transcript from their shorthand notes, which is a relatively remarkable thing. They were last used in sort of Supreme Court jury trials, but now in BC over the last 25 years or so, all of that has been digitized. So, everything going on in court is recorded by a digital audio system referred to as DARS, and that’s what used to produce transcripts. So, we’ve advanced the ball happily quite a bit. But this section of the code remains. And I suppose there could be some unusual circumstance where, you know, the issue isn’t picked up on the recorder or there’s something like this, which wouldn’t be something you could just ascertain by looking at the transcript of what happened.

Adam Stirling [00:17:56] I’m reading here pre and post judgement, interest management fees, tax gross, these are complicated terms. Michael, how do they figure out our next case?

Michael T. Mulligan [00:18:05] Yeah. So, this was this was a case which was out of Surrey. And the essential fact pattern was a few years ago, there was a bunch of snow and ice on the road and a woman in a car slid as a result of the snow and ice on the road, which hadn’t been, I guess, properly cleared or salted, causing a terrible car accident that caused this person the lifetime of injuries. And so, a jury found that the city of Surrey was negligent in failing to clear the snow there but found that the woman involved was 75 percent contributory negligence. I guess based on how she was driving.

Adam Stirling [00:18:43] hmm.

Michael T. Mulligan [00:18:43] But that wasn’t the end of the matter because of some of the issues that you’ve just mentioned. And so that case which went to the Court of Appeal and is now back, went back to the trial court, dealt with some of those issues that people may not be aware of. And the decision which just came out, addressed these concepts, including pre and post judgement, interest.

Adam Stirling [00:19:07] Mhmm

Michael T. Mulligan [00:19:07] The idea there is that if somebody was due a certain amount of money to put them in the position, they would have been in, but for the accident here. They should receive interest on that money up to the date of the decision. And then if there’s some delay in paying the judgement and there was here because of an appeal to the Court of Appeal, the person would also be entitled to interest that would accrue afterwards. And so that’s what pre and post judgement interest would be. This case also involved a relatively new concept in B.C. and that’s the concept of adding a what’s referred to as a management fee where there is a large award like this, because in this case, as in other tragic cases, the accident caused the person to have a psychiatric injury and they were incapable of dealing with their financial affairs. And so, if you just give a lump sum award to somebody who’s not capable of managing their affairs as a result of an injury, that obviously isn’t going to work. Right.

Adam Stirling [00:20:09] Yeah.

Michael T. Mulligan [00:20:09] They’re going to, money can be gone or not invested properly. And so there can be various levels of that, that are referred to everything from, you know, meeting with a financial adviser to in this case, the judge ordered that the award include an amount of $200,000 which will pay to have a professional manager manage the award for the rest of the person’s life, because the head trauma they suffered in the car accident meant that they just weren’t able to do that themselves. And so that’s another concept that people may not be aware of. And I think it’s a positive development because the purpose of these awards, right, when you give somebody an amount of money in a car accident, for example.

Adam Stirling [00:20:57] Yes.

Michael T. Mulligan [00:20:57] Is to try to put the person back in the position they would have been in, but for what happened to them. And so if you have somebody who suffered a psychiatric injury as a result of the accident, in order to get the person back to the position he would have been in, you know, able to pay their rent and buy food and, you know, whatever they might need. You know, that’s something which is genuinely necessary. And you’re not going to achieve the objective of putting the person back in the position they would have been in if you don’t provide that. Now, of course, all of these things may change if the current government does implement the proposed no fault.

Adam Stirling [00:21:39] I was going to ask you.

Michael T. Mulligan [00:21:41] regime, because all of this would then be over. You no longer have any consideration of things like contributory negligence, and you would no longer have consideration about putting the person back in the position he would have been in. Everyone would simply be subject to receiving payments of the kind you might get from a WCB claim. And so there would be a very different regime if those changes are implemented.

Adam Stirling [00:22:07] Something to watch for. We’re almost out of time, Michael Mulligan. Thank you, as always, for the benefit of your knowledge and insight until next week.

Michael T. Mulligan [00:22:12] Thank you so much. Stay safe.

Adam Stirling [00:22:15] Take care, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers during the second half of our second hour every Thursday here on CFAX 1070.

Automatically Transcribed on September 10, 2020 – MULLIGAN DEFENCE LAWYERS