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Obiter Episode 5 – Part 2 – Family Law Then and Now

In this episode, Alf Mamo describes the considerations shaping family law in 2021. Joined by co-hosts Pat Clancy and Erin Fisher, the three lawyers discuss how COVID-19 has impacted family law cases, what we can learn from these developments and the future of family law including the use of artificial intelligence and social sciences.  

Since the family is the hub of our society says Alf, family law is at the forefront of emerging changes. Alf describes the changes and complexities of gender issues, trauma, vaccinations and above all the importance of prioritizing the safety and wellbeing of the children. 

Alf also discusses his life outside of family law, describing his pastime as a “wannabe artist”, his love for old movies, and his pride for his children. 

To read more about Alf Mamo see his full bio here.

Questions about this Podcast? Email hosts Erin Fisher or Patrick Clancy or email info@mckenzielake.com

Subscribe to Obiter on iTunesSpotifyStitcher or RSS Feed.


Transcript

Pat Clancy: (00:00)
Hey, everyone. Welcome to the Obiter podcast. I’m Pat Clancy.

Erin Fisher: (00:05)
and I’m Erin Fisher.

Pat Clancy: (00:06)
And this is part two of episode five of the lawyer series. In this series, we sit down with lawyers at McKenzie Lake to discuss their career personal life and anything in between all in an effort to introduce our listeners, to the human being behind the lawyer. Previously on Obiter:

Alf Mamo: (00:31)
Eventually there was a detente, you know, kind of a treaty, which was entered into the church members and the pastor would never say we will never, ever physically discipline the children, but can we say that that’s an absolute last resort, then they say, yeah we don’t like to use it as a first resort. And that was the way it was resolved after all this hoopla, and it should have been the way it could have been resolved before the hoopla

Erin Fisher: (01:18)
He’s caught up in. I mean, when we talk about hoopla, he’s got another big hoopla going on right now about anti mask advocate and he’s holding in-person services inside his church right now in the midst of the pandemic, contrary to all kinds of local bylaws. Are there any parallels that can be drawn or, or information or understanding that can be drawn from this new situation when compared with the last?

Alf Mamo: (01:47)
I think it’s the same issue in different clothing, right? It’s the religious beliefs versus the law, and saying that “we don’t subscribe to, the limitations that this law imposes on us because it’s restricting us, restricting our ability to get together and go to church services and do what we consider to be the will of God.” So it’s the exact same issue and, you know, and I’m not surprised. And obviously, I respect the freedom of religion and pastor Hildebrands right to assert freedom of religion. What I find frankly offensive about this, however, is the pastor is looking at what’s going on as a conspiracy or a manipulation by the establishment to manipulate and control people. Again, I haven’t talked to him about this but if news reports are accurate, comparing what’s going on with Nazi, Germany is very repugnant to me because, you know, I think you should read history a little bit more carefully about what happened. The evil of Nazi Germany and the dismissal of the pandemic as a serious health issue goes against science and goes against the facts. If he’s fortunate that he’s never met anyone who has had a family member die of COVID or someone who had COVID and survived it, I think he would take it more seriously. You can’t look at, you know, 462,000 people in the United States died. You can’t tell those parents, the grandchildren, the husbands and wives and children of those people that this is not a real problem. Going around saying that not only affects the church members, which is, you know, I mean, that’s their business, but it also incites other people who are not parts of the church to disbelieve it, thinking that someone who is a leader in a church would not be lying to them. And I’m sorry, but I think that he’s not being truthful when it comes to the way he is casting the issue. So I think, I think there are parallels with that case and what’s going on now. What I’m afraid is that it is being used to create a fight between the church and assert himself, you know, as the leader,

Erin Fisher: (04:45)
Right, to further isolate or insulate his flock.

Alf Mamo: (04:49)
Yeah. Which is kind of what justice Snell predicted 20 years ago in the other decision.

Pat Clancy: (04:58)
Well, getting back to family law cases, that children’s aid society case was 20 years ago, and that was obviously an interesting case, but what kinds of family law cases are emerging now in 2021?

Alf Mamo: (05:12)
There are a number of cases that are causing us to look at what’s going on in family law. I did a trial in the seventies where I acted for a father of a child in a common law relationship. After the trial justice Winter, I remember at the time, said on the record, “the father is a better parent than the mother, It would be in the best interest of the child to be raised by the father, but given the state of the law, this is a young child, and the mother should be preferred over the father because they were never married. It’s still her child.” So he gave custody to the mother. So that tells you what that was like in the seventies, since then, we’ve been moving towards equality. While that is desirable, and certainly there’ve been many studies that show that with parents who cooperating with each other, that’s the best result for a separated family is to have full involvement by both parents. But there’s also a lot of studies that says, if both parents don’t get along, if there’s continued conflict, that is detrimental to the children. So the issue is now becoming a question of conduct and people are beginning to fight over accusations, for example, of domestic violence by one parent against the other, a lot of times it’s by a mother against the father are countered with the father, accusing the mother of alienating the children against him. So this issue, the alienation issue is becoming huge in terms of as a weapon in order to say, “the reason why I don’t have a good relationship with the children is not my fault. It’s the other parent who is turning them against me.” And a lot of judges are buying into that and they’re buying into that in spite of the fact that the mother might say, “I’m not alienating against him. He was an abusive father and the children don’t want to spend time alone with him because they used to use my protection when they were in the home with me, and now they don’t want to go to his house.” And because unfortunately its kind of delineated on gender lines, it’s become the new gender issue and it’s a very complicated gender issue to decide, you know whether domestic violence existed and whether they’re alienation exists. There’s been crazy stuff happening, in my definition of crazy teenagers being taken out of the home where they’re doing well with one parent and put into camps designed to change their attitude and try to unify them with their father and people escaping from those camps. Kids ended up in psychiatric hospital on suicide watch as a result of not being able to go and live with their favorite parent. So these are very hard, tough cases, and they are increasing not decreasing unfortunately.

Erin Fisher: (08:26)
They can be very expensive cases, too, that’s, which is a big hurdle for the parties involved in them is just normal people that need to get all kinds of experts involved and there’s the delay associated with having those experts that can really stretch out and exacerbate the strain everybody’s under.

Pat Clancy: (08:43)
Are there other gender issues that exist today in family law?

Alf Mamo: (08:48)
There’s issues now around gender that we would never have thought about a number of years ago, you know, children who identify with a gender that they were not born into, and then parents having a difference of opinion as to what to do about that. And again, it creates a real rift in terms of what you do. I’ve always believed that listening to children and that children should have a voice in custody and access cases if they want to, they don’t have to, but I mean, I’ve favored legislation make it mandatory for children 12 years and over if they wanted to, to be involved and have a say and have a voice. They don’t decide, but they should be consulted if they want to. I’m not advocating forcing, but these are emerging issues with sexual identification. And again, it comes to the social sciences, junk social sciences in my estimation, supporting that, just like there’s camps in the United States, and is that some judges have bought into about changing the agenda. So they say, “Oh, you know, my son cannot be gay. He needs to be converted into realizing that that’s not, you know, either on religious reasons or for whatever reasons that that’s not acceptable, and we’re going to send them to this camp to change his orientation,” which is craziness. And then someone, some psychologists will justify why that’s healthy, like some psychologists are trying to justify why it’s healthy to take your child, who is doing well away from a parent and put them in a camp to be indoctrinated in favor of the parent that they don’t like. You know, it’s not an easy issue, but to me, if you just put blinders on and not look at the parents and look at the best interest of the child, I think we should be respecting the child’s autonomy and integrity and not make him a football between parents.

Erin Fisher: (10:58)
I think that’s one of the most interesting parts about practicing family law is that issues that are emerging in society, I think family law is one of the first places in the law that they kind of start to appear. For example, gender identification shows up increasingly in family law cases, same with sexuality and all of that type of thing. There isn’t a lot of case law outside of family law or legislation outside of family law and we’re, I don’t want to say making it up, that’s not the right word, but we’re figuring it out all together as a practice area.

Alf Mamo: (11:31)
You put your finger on why I like family law, because it’s at the hub of our society. Obviously it’s a fundamental element of our society and societal issues are the family law issues we deal with and its important. It’s important with not just with what the law might say about it, but it’s important what the process is to get to a result because the adversarial system doesn’t lend itself to dealing with these touchy issues. It’s a very blunt instrument because it requires cooperation and by definition, the adversarial system is A versus B, it’s antagonistic, it’s adversarial. So we need to rethink not just what, how, what our laws look like, but also what our process looks like.

Pat Clancy: (12:23)
What about vaccinations? Would they be an emerging issue, you know, with COVID?

Alf Mamo: (12:29)
Vaccination has been an issue for, for a while, but it’s going to become very, very important in the COVID era because of all the the importance of vaccination and the herd immunity issue. You know, I was appointed by a judge to represent a child a couple of years ago, where there was a dispute between separated parents with respect to vaccination. One wanted the child vaccinated, the other one didn’t and I think the child was around 12. And, uh, you know, the, the, as a point as amicus curiae which means that the judge appointed me to actually bring all of the arguments for and against vaccination, because he wasn’t satisfied he’s getting the full picture. At the end of the day my recommendation was that the judge should not be put in a position to determine whether vaccination is good or bad on the science, even though there’s a lot of science in support, but should decide on who is the better parents to make that decision, because it’s the parent who knows the child, it’s the parent’s values, if you can choose between parents. But it’s an interesting issue and it raised itself, not just in terms of vaccination, but with COVID in terms of just visiting rights. A year ago, there was all kinds of urgent motions where, one parent said, “wait a minute, Joe’s with me and he’s going to stay with me for the duration of the pandemic, because you have a girlfriend and her children, and those children are visiting with their father, and I’m not going to put them in your house because not only, can you contaminate them, but so can your girlfriend who can be contaminated by her ex husband’s partner and becomes like a domino.” The courts were very quick to sort of say, “no, you’re not going to use the pandemic in order to breach court orders and breach agreements, unless you can prove that there is real risk to this child, either because of their immunity system or their problems, or their exposure to someone who’s likely to have it.” So we’re at the forefront in family law with all the social issues, because we’re at the center of, well the family is at the center of everything we do.

Erin Fisher: (15:01)
It was very, very interesting through the first couple of months of the pandemic, especially when people were in lockdown and vacations were being canceled and people were working from home and managing that, and all those separated families, the case law built up incredibly quickly. And it became a real, I don’t want to say science experiment. Nobody wants to think about their family law case that way, but to see how quickly a brand new emerging issue can be dealt with in the case law and family law was very interesting.

Alf Mamo: (15:30)
Yeah. And some great pronouncements from judges. I mean, Justice Kurtz, who I know is a relatively new judge wrote a decision where there’s this big conflict between parents on the COVID issue and in it, he says, I mean, I’m not articulating, I’m not quoting, I wish I could be as articulate as he is. He says, you know, amongst this pandemic, the one thing that hurts children and which there is no vaccination for is conflict between parents and basically said, cut it out. Then we’ve had judges say, you know, at some point you have to love your children more than you hate each other, and it’s that kind of environment that we work in family law. It’s something that we try to work on continuously, not just, like I said, in terms of the law, but how can we do things differently so that it does not hurt children to the point that Erin you made, it’s just getting too expensive. It’s been too expensive to litigate, especially with children’s issues. I always tell people those issues have a very short shelf life. It’s not like having a car accident and you decide who’s at fault, you decide what the damages are and you’re done, right? You never, again, have to look at that case. With family law, you know, support can change depending on the circumstances, but with children as children grow older, their needs change, their desires change. So you could put a mortgage on your house and blow your parents’ savings on a huge custody fight only to find that two years later, the circumstances have changed and you have to do it all over again. So we need to be more realistic about that and we cannot promise people that if they spend this all kinds of money, that somehow the solution is going to solve all their problems, because that’s just not right. It’s not true

Erin Fisher: (17:30)
In the grand scheme of things, the person making decisions on all the evidence about your children probably should be the parents, not the stranger on the bench that they’ve never met before and will never see again and you don’t know what their personal history is. If they’ve been through a divorce with terrible custody and access issues, or if their coffee maker was broken in the morning, it just, there’s just gotta be a better way.

Pat Clancy: (17:55)
Can’t we have a computer make those decisions? Is that possible?

Alf Mamo: (17:58)
Well its interesting that you say that Pat, I think what’s happening. If I can be so bold to sort of predict where we are and where we’re going, is that when it comes to financial issues where we’re going with math and algorithms artificial intelligence is going to decide it for us. I mean, this actually exists right now, even in tax law, for example, there are two professors from the University of Toronto who have done all of the research on all the cases, dealing with different issues. So for example, the issue is you sell a piece of property and the issue is, is this capital gain or is it income, right?

Pat Clancy: (18:52)
Sure.

Alf Mamo: (18:53)
And so you can feed information into the computer and you can get a result that says 89% of the cases in that fact pattern says it was income. And the computer, artificial intelligence, is able to dissect a lot more cases than any judge could ever do, like intake, all kinds of, of things into consideration. So you feed into all these fact patterns, and then with artificial intelligence, it learns.

Pat Clancy: (19:26)
As more, as more cases are feeded to it, it learns.

Alf Mamo: (19:28)
It learns, and it keeps on going, you know, I think it took 10 minutes for a computer to beat the first grand master in chess and then after it learned to do that, you know, it can do it in like nanoseconds because it learns and it doesn’t forget things. So that function can be used to determine child support, spousal support, division of property and I think we’re definitely going in that direction. With other issues, however, there’s a real movement in the United States on trauma informed courts with the realization that a lot of family law clients and lawyers and judges do suffer from the trauma of the conflict that family law causes. And now what’s happening is with all of the emphasis on mediation and negotiation and resolving cases, the cases that are going to court are the cases where there is personality disorders, there’s abuse, there’s maltreatment, there is addiction issues, and those cases are not going to lend themselves to a computer because they’re going to need a treatment milleu more than a decision and they have to be recognized, and judges need to be made aware of those issues. From a study that was done a number of years ago, which I find not let people know is that if abusers go to court on a custody fight, an abuser has a better chance of being successful than the abused. Why? Because the abused goes in traumatized and makes a bad witness by the definition that we use on what makes a good witness, a charming abuser convince a judge lot easier and this is going to get worse when we’re doing, in my opinion, when we’re doing cases online, why? Because when you’re looking at a screen what’s going to happen, and to some degree, this happens in person as well, but it’s going to be much more pronounced, we get our notion of emotions from television and movies, but mainly from television now, because you know, movies seem to be a thing of the past. So for example, your idea of happy is you think about tears or you think about, about, about Seinfeld look a certain way. They act a certain way. When they’re sad, they act a certain way, when they’re remorseful, they act a certain way and so if someone doesn’t act like that, we form opinions about that person. We forget that the person who was on television doing that is acting that you know, it’s not real. And the witness you have in the witness box, who, can put the sentences together is real and what you’re seeing is the consequence of the trauma that you suffered, especially watching the abuser, seeing her as the witness at the counsel table, right in front of her. So these are things that judges need to learn. These are things that lawyers need to learn. And these are nuances that if we’re going to improve the system have to become part of our system. We have to learn how to differentiate between between people and their actions, and what’s true, and what isn’t true. So there’s this dichotomy between, I think, one area being driven by artificial intelligence and the other one being driven by science, the psychology and the humanity that does require an understanding that cannot be given by a computer, but requires a real understanding of the social sciences and behavior.

Pat Clancy: (23:41)
I don’t practice family law obviously and maybe one of you two can obviously answer this better than me, but would family lawyers, would they not be more, they would be more inclined to want to argue that the more cut and dried cases or the numbers cases where there’s a pot of money involved, right? And you know, when you’re getting into contextualized issues like you were just talking about, are you going to have lawyers wanting to do those cases? Are they going to be incentivized to do those cases?

Alf Mamo: (24:13)
Well, interesting because I did a paper more than 20 years ago now about the future of family law, and at that time I had predicted that we’re going to end up with a paralegal type person who has more, more information and knowledge in psychology and social science than in law who will end up being the person to drive resolutions in custody and access cases. I do think that that’s what’s going to happen. I think there’s still going to be lawyers who have an interest in it, like me, who will still do custody and access cases, and are going to be inundated with them and we’ll have on staff, the social science peoples that help them with those cases. But by and large, it’s not going to happen tomorrow, so don’t worry about this Erin, but eventually, eventually I think that with artificial intelligence, the money cases are going to become like residential real estate, you know, I mean not to be minimizing,

Erin Fisher: (25:25)
No offence Pat.

Pat Clancy: (25:25)
Hey nothing wrong with residential real estate, we do great work.

Alf Mamo: (25:32)
Just between the three of us. There’s not a lot of legal, kind of work,

Pat Clancy: (25:41)
I understand what you’re saying.

Alf Mamo: (25:42)
It’s transactional and that’s, what’s going to happen I think when we do that. There’s still going to be people who will fight over the money because of the, you know, if someone with a personality disorder, for example, is going to want to fight no matter what, it’s not going to accept the computer, what the computer tells you. Yeah. But most of those cases I think the computer is going to look after. So yeah, we’re going to see a divergence between what I call human issues and money issues. I think in family law as this, as this decade unfolds,

Pat Clancy: (26:21)
You’re seeing that right now with policing, right? Like there’s this push to defund the police and bring in, you know, I don’t know, social workers or people that are trained in mental health issues for, these kinds of situations that the police are not either able or not trained to handle. So you know, there’s a lot of those types of people are brought into police cases.

Alf Mamo: (26:46)
Yeah, and, you know, London, Ontario was a leader in that, and this is a sad story. In the seventies, in the early seventies, there was the what’s called the Family Consultants were formed and they were social workers employed by the police and payed as police officers but they were not officers, who were called upon. So when there’s a domestic call, they’ll go in with the police officer and they’re the ones who interviewed the parties and it was a very successful model. And also dealing with young offenders and children in conflict and children’s aid issues and people from all over the world came over to look at it and was very successful until a few years ago when there was this, when, you know, there was some budget crisis and they cut the program.

Pat Clancy: (27:43)
As recently as a few years ago?

Alf Mamo: (27:45)
I would say, I guess, about five years, the police consultants program and there were some very good people. I was on the management board of the Family Consultants for a number of years and we had some very good people. The police officers loved it, they were there to keep the peace, but they didn’t have to do the heavy lifting of trying to figure out who’s doing what to whom. And they would make appointments for people, So, the problem is a lot of times you say, well, you should go see a therapist, or you should go to anger management or whatever, and everybody promises everything and then they walk out and nothing happens, but they used to make sure you say, okay, I’m going to go to anger management that you’re going to go to anger management. But, but you’re right. I think the, the issue is not to me, let’s talk about defunding the police. It’s not about defunding the police. To me, it’s about diverting a percentage of the budget towards a new type of policing.

Pat Clancy: (28:56)
It sounds like that the police would want, if it’s done properly.

Alf Mamo: (29:02)
You ask any police officer, they hate going into that situation. For example, which happens so often is where someone with mental health issues is disturbing, the peace. So they go in and the person is, is, you know, is, is erratic because they’re having a psychotic episode and what are they supposed to do? You don’t know if they’re going to kill themselves or kill somebody else or do nothing.

Pat Clancy: (29:28)
Right.

Alf Mamo: (29:29)
So they would love to be able to call on someone who is actually a mental health professional, who’s dealing with those people, and they’re there if the person becomes violent, then you know, safety you’ve contained that person, but the talking part and planning on this, not happening again in the study that we did show that there were nine incidents of family violence before the police were called, you know, that’s a lot and that’s why a lot of times you have very unfortunate incidents where the police say, well, we had no idea, we’ve never been called, you know, things happen before you’re called.

Pat Clancy: (30:11)
I just wanted to ask you a little bit, like we didn’t get into it and meant too early on, but what do you like to do outside of family law when you’re not arbitrating cases or being a family lawyer, what kinds of interests you have?

Alf Mamo: (30:23)
I’m a wanna artists. So I read a lot of art, art books when I can. And I paint when I can. I like old movies.

Pat Clancy: (30:32)
What’s your favorite?

Pat Clancy: (30:33)
Casablanca is my favorite, I’ve probably seen it a hundred times. And you know, it’s interesting because during these COVID days, you know, I think we’re all a little anxious, at least I admit to being anxious. I find that watching an old movie helps with that. Even if its a gangster movie, you’re not going to see any blood, you

Erin Fisher: (30:57)
In black and white, it doesn’t look so bad.

Alf Mamo: (30:59)
Yeah, I find movies where there’s graphic conflict a bit disturbing because you know, my mental set right state right now is that I want calm and pleasantness.

Pat Clancy: (31:18)
So have you been painting in, in a little bit then?

Alf Mamo: (31:21)
Well, I’m kind of working interestingly enough, on a charcoal sketch. And I haven’t worked with charcoal forever, but I want to do a pandemic sketch and that has to be dark. So, usually, I like, I like bright colors, I like to paint in kind of bright, beautiful colors. So I’m kind of working on that. I’m still working on the design of it.

Pat Clancy: (31:48)
That’s awesome. And family law, or while the law runs in your family, or it has run onto the next generation, right. Your kids

Alf Mamo: (31:57)
I’m proud, I’ve got two children, both became lawyers. I don’t know where I’ve gone wrong,

Pat Clancy: (32:05)
You’re proud but you don’t know where you’ve gone wrong.

Alf Mamo: (32:08)
My son is actually doing family law in Toronto. He formed his own law firm now.

Pat Clancy: (32:15)
How does he market himself?

Pat Clancy: (32:18)
Well, when he first came out, you know, he had told people that he consults with me before giving advice. So he had this, he’s got a great sense of humor. He actually even did stand up comedy when he was doing the bar admission course. So he used to market himself as “you get outside advice at half price.” Because his hourly rates were a lot less than mine. My daughter is a very successful criminal lawyer in Toronto. And she actually just, this week, she said she in the text to me and her mother saying, you guys were really psychic or something when you named me, because I just found out Alexandra means defender of people, and that’s what she does. I tried criminal law and I didn’t like it, but she she’s very good at it. Interesting story about her is she got somebody out on bail and the guy says to her, yeah, I knew I wanted to get, he says, you know, down at the jail, I talked to you, your name is as Merryweather. And she said, Merryweather? My name isnt Merryweather. And he said, well, you know, the boxer, he never loses.

Pat Clancy: (33:38)
Floyd Merryweather.

Alf Mamo: (33:42)
So anyway, I’m very blessed. They’re both very, very good kids and successful in their profession. But most importantly, they’re just nice people and I think that’s the best thing you can accomplish in life. There’s no legacy like leaving behind kids that are contributing to society and have good values.

Pat Clancy: (34:08)
Al thanks so much for sitting down with us and talking to us today.

Erin Fisher: (34:12)
Yes, this was great. Thanks Al.

Alf Mamo: (34:13)
Thank you, have a great evening.