Judicial Settlement-Seeking in Parenting Disputes: Consensus and Controversy

(2012) Conflict Resolution Quarterly, Vol. 29, No. 3, pp. 309-332

The judicial role in child custody and visitation disputes has traditionally been understood as one of authoritative decision-making. However this new empirical research suggests that many family court judges prioritize the pursuit of voluntary settlement in pre-trial conferences, using evaluative and facilitative mediation techniques. Drawing on qualitative interviews with judges and other family law professionals in Toronto and New York City, this article identifies points of consensus and controversy among settlement-seeking family judges. Despite the general support for settlement-seeking, there are substantial differences of opinion regarding coercion, due process, and the meaning of the best interests of the child standard.

Online: SSRN, http://ssrn.com/abstract=1687268

Whose Best Interests?

(2010) Osgoode Hall Law Journal, Vol. 48, No. 2, pp. 287-336 (Peer-reviewed).

This article compares the law of custody and access disputes with the procedure used to resolve them. I argue that there is a fundamental contradiction between these two things. The former focuses on the interests of the children involved to the exclusion of all else. The latter, however, is controlled by and designed to protect the rights and interests of the adult parties to the dispute. Despite their doctrinal centrality in custody and access law, children are usually silent and invisible in custody and access procedure. To resolve this contradiction, I propose a focus on the costs and benefits of parenting litigation for the children involved. Too much parenting litigation occurs which has more costs than benefits for them. We should curtail some of these cases, and apply the proportionality principle to others. Finally, these children should have a stronger voice when decisions are being made about their future.

Download Paper from SSRN

Whose Best Interests? from Noel Semple on Vimeo.

A brief video presentation based on this paper.

The Silent Child

(2010) Canadian Family Law Quarterly, Vol. 29, No. 1, pp. 1-25.

There are two possible forms of evidence in a custody or access (visitation) case which is determined through adjudication. First, the judge may hear from the adult parties and the witnesses whom they choose to call. Second, the judge may hear “children’s evidence,” which comes either directly from the child, or from a neutral professional with child-related expertise. To assess the prevalence of children’s evidence in Canadian custody and access litigation, the author conducted a quantitative survey of 181 reported decisions from 2009. The central finding was that only 45% mentioned any form of children’s evidence. Among the various varieties of children’s evidence, assessments (also known as child custody evaluations) were much more common than legal representation of children or direct evidence from children. The paper concludes by contrasting the primacy of the child in custody and access doctrine with the reality that the children involved appear to be effectively silent in the majority of the adjudicated cases.

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The Eye of the Beholder: Professional Opinions about the Best Interests of a Child

(2011) Family Court Review, Vol. 49, No. 4, pp. 760-775 (Peer-reviewed).

Full text online, SSRN: http://ssrn.com/abstract=1327485

This paper is is based on my LL.M thesis, which I successfully defended on June 10, 2009.  The Below, please find short and long versions of the thesis, as well as a 15 minute video presentation.

The Eye of the Beholder from Noel Semple on Vimeo.

Thesis (30k words)

Short Version (8500 words)

For an even shorter description, please click here: Continue reading

Judicial Review in the Federal Courts: A How-To Guide.

with Freya Kristjanson, Borden Ladner Gervais LLP.

Prepared for the Ontario Legal Clinics Conference, this is a summary of the procedure and substance of Federal Court judicial review of administrative decisions. This paper was written with a legal clinic audience in mind, and pays particular attention to the federally-reviewed tribunals which clinic workers are most likely to deal with.

Judicial Review in the Federal Courts: A How-To Guide

The Case for Tribunal Standing in Canada

(2007) Canadian Journal of Administrative Law and Practice, Volume 20, Issue 3, pp. 305-323.

“Judicial Review” means a court reviewing a decision made by an administrative tribunal. When judicial review occurs, should the tribunal be allowed to send a lawyer to court to defend its decision? I think it generally should, and this article explains why.

Found online here: The Case for Tribunal Standing in Canada

Cited by the Alberta Court of Appeal in Leon’s Furniture Limited v Alberta (Information and Privacy Commissioner), 2011 ABCA 94, at para 25.