Obiter | A Podcast from McKenzie Lake Lawyers

Episode 5 - Part 1 - Family Law Then and Now: A Conversation with Alf Mamo

April 08, 2021 McKenzie Lake Lawyers LLP
Obiter | A Podcast from McKenzie Lake Lawyers
Episode 5 - Part 1 - Family Law Then and Now: A Conversation with Alf Mamo
Show Notes Transcript

Description

Co-hosts Erin Fisher and Patrick Clancy are joined by prominent Family Lawyer Alfred Mamo.  
Alf was called to the bar in 1972 and has had an incredible career across several sectors of the legal profession. Spanning almost 5 decades, Alf has kept a steadfast commitment to the protection of children’s rights and safety from representing young offenders to acting for children's aid societies.  

Pat, Erin, and Alf discuss his childhood in post-war Malta, his family’s immigration to Canada and his journey to becoming an esteemed mediator and arbitrator of high conflict family law cases and a Fellow at the American College of Trial Lawyers.  

Developments that have shaped the practice of family law throughout his storied career are discussed including one of his most notable past cases involving an in-the-news pastor and why this case is more relevant today than you would think. 


Patrick Clancy:

Hey everyone. Welcome to the Obiter Podcast. I'm Pat Clancy,

Erin Fisher:

and I'm Erin Fisher .

Patrick Clancy:

This is part one of episode five of the lawyer series. In this series, we sit down with lawyers at McKenzie Lake to discuss their career personal life at anything in between all in an effort to introduce our listeners, to the human being behind the lawyer. Alfred Mamo has been a family lawyer at McKenzie Lake since 2008, and is currently a mediator and arbitrator of high conflict family law cases. Alf was called to the bar in 1972 and throughout most of his career was a trial lawyer trying hundreds of family law cases in court. He is a lifelong learner and an expert on the forefront of emerging family law issues in Canada. Alf, how are you today?

Alf Mamo:

Very good , Pat , how are you doing?

Patrick Clancy:

I'm doing well. I'm here with Erin today. She is.

Erin Fisher:

Hello.

Patrick Clancy:

She is filling in for Melissa as a guest host just a little bit about Erin . She's a family lawyer here at McKenzie Lake, and I thought it would be a good co-host for this particular interview as neither Melissa or I are family lawyers and Erin...I keep wanting to call you Melissa. Erin has a ton of knowledge and family law and will help to kind of bridge some of the, maybe some of the family law concepts that we talk about today. And we'll know more than Melissa or I, that's for sure. So, so Alf if, you were born in Malta shortly after world war II, is that right?

Alf Mamo:

That's correct. The Island of Malta in the Mediterranean. And was there until we immigrated to Canada when I was 17 years of age?

Erin Fisher:

What was Malta like post-World War II?

Alf Mamo:

Malta post-World War Two was in ruins. Malta was the most heavily bombed country in the second world war. As a result, most of the buildings are bricks and made out of stone and once they were demolished, they continued to be there for many, many years because there was no money to rebuild them. As children, we used to play in the rubble and we used to play in the shelters, which was kind of fun , going into these horrible narrow shelters that were cut out in the rock. It kind of defined a lot of my childhood, frankly. To this day I read a lot of books about the second world war, and I'm very much fascinated by, by the dynamics of that war .

Patrick Clancy:

How old were you when you came over to Canada?

Alf Mamo:

I was 17, almost 18.

Erin Fisher:

Why Canada were there other options?

Alf Mamo:

Well, Malta's main export is people, and people, people go either to Canada usually, or primarily to Canada or Australia. Some people go to the United States, but the United States i s much harder to get to, and some will go to England, but again, it's not as easy to get to. So we came in the early sixties, which was in the Pearson years where there are a lot of immigrants who came during that time that became lifelong liberals because Lester Pearson kind of relaxed the rules to let people come here. And so we benefited from that and we actually had relatives in Australia and in Canada, but my parents on my mother's side decided to come to Canada. So in addition to us a number of uncles and aunts and their families, and my grandmother ended up coming here as well. So we immigrated the family most stayed in Toronto. We went to Chatham.

Erin Fisher:

How was your English when you came here?

Alf Mamo:

Well, we learned English at school and I wrote exams in English. So my written, my written knowledge of English was much better than my speaking knowledge of English, but, you know, people were very, very helpful. I found when we came to Canada, that people were extremely helpful. I've never been, interestingly enough, at that point in time when we came, I was never subjected to any kind of discrimination or indication of any kind of racism. Interestingly, it wasn't until I practiced family law for quite a while that I started getting husbands of wives I acted for will send me kind of derogatory remarks about my heritage.

Patrick Clancy:

So then what did you go to university?

Alf Mamo:

Yeah, I went to Kings college in London, which at the time was called Christ the King college, the Catholic university college. My parents thought that that's kind of safe because it's Catholic and you know, we were born and raised Catholic and it was the closest to Chatham except for university of Windsor, I suppose. Because I intended to become a lawyer, I took English and then went to law school after two years. I never got an undergraduate degree.

Erin Fisher:

Did your parents guide you? You said you wanted to be a lawyer, were there other options they gave you or was that it?

Alf Mamo:

Well, my father was a laborer and my mother really wanted me to be a priest, frankly. Being a good Catholic family that's what every mother wants to be to be the mother of a priest is as close as you can get to God, but that did not appeal to me. So my mother's second choice for me was b eing a lawyer primarily because whenever she asked me to do something that I didn't agree with, I always tried to convince her otherwise. She thought that that's the characteristic of lawyers. It's interesting, her take on l awyers, was people who t ry to convince you that black is white.

Erin Fisher:

Some might argue lawyer is the actual opposite of priest . It's funny to think they were one and two.

Alf Mamo:

Yeah, it's interesting, because I don't think my mother ever knew a real life lawyer. At least we never knew any lawyers in Malta. We didn't travel in those circles.

Erin Fisher:

I think you said earlier, or in another conversation that you applied to and got into Cambridge and Oxford too .

Alf Mamo:

When I wrote my advanced levels, I then applied to go to university and I was accepted at Cambridge and Oxford, but we didn't have any money for me to do that. And besides, you know, my parents, my mother, especially wouldn't have, let me go by myself anyway.

Patrick Clancy:

After law school, you picked an area of law and I think you've, you've practiced family law since you started being a lawyer, I guess, or since you started practicing as a lawyer, is that accurate ?

Alf Mamo:

I did get an interest in family law when I was a student when I was articling as a result of justice Maurice Jenae. Justice Janae was a provincial court judge in the family court in London and he also sat in St. Thomas where I articled . At that time I used to represent young offenders in his court, which we call "juvenile delinquents" in the seventies, in the early seventies. He always told me that he thought I had an aptitude for family law. Not many people wanted to do family law and family law at that time was not really a recognized discipline. So I couldn't do full-time family law because it wasn't recognized that, that there wasn't a volume. And I did general litigation. I did some criminal law. I did some civil. My first trials, I did three big trials within three months of getting called to the bar. I was really thrown into the deep end. Then I was asked to go to do an uncontested divorce i n Windsor and I h ad never done one. I'd never even seen one. So I get there and we're all there to do uncontested divorces, a whole bunch of lawyers. And the judge says, "O h Mr. Mamo, I see you're on the list here." I didn't know him. He didn't know me. "I see you're from out of town, so he c an go first." I did not want to go first. I wanted, I wanted to watch others do it so I can learn, what I'm supposed to do? So I said, "well, that's very kind of you, your honor but I, you know, I do have time and I would rather just sit back and take my turn, you know, according to the roster." "Oh no," he says. So I just went in to t he, what we called the petition for divorce at that time and asked every question in t he petition for divorce, not knowing what else to do. I realized until later on, later on, once I knew what's going on an d I had more practice, I realized that in those days with uncontested divorces, the challenge was to do it in the shortest period of time you possibly can. I achieved the highlights in Toronto at a c ourt where a j udge used to do over a hundred divorces an hour. Think about that.

Patrick Clancy:

Is that like 45 seconds a divorce or something?

Alf Mamo:

At that point, all I did is say "Jones verses Jones". It was just like a stadium full of people inside the court room. "Jones versus Jones" and somebody raises their head and another says, "is everything in the petition true?" And then somebody from the crowd says "yes" "divorce granted!" So it's for that reason that eventually as we do now, uncontested divorces no longer require a hearing in court and they're done by a judge in her chambers. In the early days, I did do quite a bit of civil litigation and criminal law as well. But once, lawyers caught on to the fact that I liked family law, they were very happy to send me family law clients because no one wanted to do family law and family law did not really become a recognized discipline until the reports of family law were started by Justice Steinberg first and then took over by professor McCloud where there was a place to record reported cases. Before that there were some family law cases reported in the Ontario courts and Ontario reports and the Dominion Law Reports but wasn't recognized as being a discipline that was separate from general civil litigation.

Patrick Clancy:

And when are we talking? Is this the seventies?

Alf Mamo:

The Seventies. So in 1978, what was known at that time as the Family Law Reform Act came in, which changed a number of things. It changed the Deserted Wives and Children's Maintenance Act, which was the legislation under which we acted. As it described, it really was a code for, for women, for wives to get support. There was no property division as such, whoever owns something gets to keep it. Men had no right to support under the provincial legislation. If you are deserted, which means if your husband leaves you without good reason, then you can get support. The provisions of the act were, however, that if one act of adultery will disentitle you to support for the rest of your life.

Erin Fisher:

That's what I was going to ask. When you said "without good reason" there were specific caveats to being abandoned? If you caused it?

Alf Mamo:

If someone leaves you because you committed adultery, then that was deemed to be a good reason and then there were those issues of cruelty. The Divorce Act at that time had a long string of grounds from insanity to homosexuality to abandonment. If you leave the house without good reason, you have to wait five years to get a divorce based on separation. But if you're the person left behind, you could do it within three years. So there were a lot of bargains then to get the innocent party, to do it for a price, it was , it was strange.

Patrick Clancy:

So in the seventies then, would you have been one of the few people practicing only in family law, like in court where you're going up against general practitioners that is that who you would try cases against?

Alf Mamo:

Yeah, that's that's right. And the other big development was in 1975, the Law Society opened a bar admission course in London and Ottawa. Up until then everyone had to go to Toronto for six months to take the bar admission course, and then write the bar exam. Then they opened one in London and one in Ottawa, so that you could choose between London, Toronto, or Ottawa. And I was asked to teach in the bar admission course. So imagine I had only been out for three years, but I was kind of specializing and not many people did. By default, I was asked to teach in the bar admission course. So that from then on the bar admission course helped to find people who would be interested in family law. And also again, helped create family law as a discrete discipline for lawyers to the practice.

Erin Fisher:

How long would you say it was before, I mean, the current system is that many people specialize in family law only and then within family law, there are specialties, how long did it take from the mid seventies to now to get to where we're at?

Alf Mamo:

Well, it wasn't until the changes to law in 1986 and the Divorce Act. So I would say mid to late 1980s there was a paradigm shift and by then it was pretty ingrained. Then the other issue is of course the law society decided to give out specialty designations that you could apply for and get and that also encouraged people to specialize.

Patrick Clancy:

And you're a member of the American College of Trial Lawyers, correct?

Alf Mamo:

Yeah well the term is the Fellow. Women can also be members of the American College of Trial Lawyers, but they still have to be called Fellows.

Patrick Clancy:

But you don't have to be American?

Alf Mamo:

You don't have to, although most are American . There are not that many Canadians, you cannot apply to be a member, you have to be invited. Someone will put your name in and then they'll do an investigation and if they think you're worthy you get invited and you have to attend in person to a place in the United States, wherever the convention might be to be inducted into the college.

Patrick Clancy:

Are there any other notable Fellows that we might've heard of?

Alf Mamo:

Well, yeah. Usually members of the Supreme court of Canada are invited like Rosie Abella , for example, to be Fellows.

Erin Fisher:

I wondered about Johnny Cochran, and those guys, is that the type of people we're talking about?

Alf Mamo:

Yes, yes, those are, those are the type of people. David Little who used to be a judge actually was a member and he always told the story about going to one of the meetings, the conventions you can tell that these are people who make a lot of money. American lawyers, at the top of their game who make a lot of money are Fellows. So they always have these in extravagant hotels and they lavish surroundings, which is why I don't go very often. He s ays it's an expensive proposition, but David Little tells a story about an American trial lawyer that he was talking to over lunch at one of these functions who w as talking to h im about his farm in Texas and says "come over to my farm i n Texas and I can show you around" and we can s core a nd look at the land. Then someone said, "yeah, but you better take an overnight bag because in order to get to the edge of his farm, it takes you more than 12 hours to d rive. "

Erin Fisher:

Oh my gosh . Oh my gosh.

Alf Mamo:

You can imagine the size of the place ,

Patrick Clancy:

It's like the state of Rhode Island,

Alf Mamo:

But , but you know, the one thing that struck me is that you are dealing with people who represent the biggest companies, they would represent Apple and Google and Shell and Exxon, but most of them are very humble. I expected that they're going to be a lot more full of themselves, but they weren't, they're successful. They've made it, and they don't need to brag about it.

Patrick Clancy:

Alf at this point in your career, you do mainly arbitrations and mediations, but is there any particular area of the law that's a particular interest to you?

Alf Mamo:

I also have a bit of a specialty in children's law. Most lawyers, most mediators, and most arbitrators don't particularly like doing parenting cases because it's not crisp. It's not math like it is with support or dividing property. There's a lot more emotion involved. There's a lot more accusations about conduct issues that impact the parenting of children. So most people shy away from it , I don't. To play around with people's money is one thing, but to be invited to assist people with the parenting of their children, that to me is much more important. Whether you get a thousand dollars or $10,000 more per month in support is neither here nor there in most times. But if you lose having significant parenting time with your child, that will affect you and more importantly will affect the child for life. So I take that very seriously.

Erin Fisher:

You've had a specialty or a keen interest in children's law throughout your career, correct?

Alf Mamo:

Yes. You know, like I said, I did a lot of young offenders work before they changed the legislation. When I first started doing this work, children who got in trouble with the law were treated as misguided youth, and you tried to help them get on the right path. It was very rewarding when someone who hasn't been going to school and is in trouble all the time, when you can get them to get some help and get on the right track. So I always liked that. I didn't like it when they changed the legislation to make it more criminal in nature. But I also, acted for children's aid societies and I acted for parents involved with the children's aid societies.

Patrick Clancy:

Are there, are there any particular cases that stand out to you over your career related to the best interest of the children?

Alf Mamo:

You know, there's been in the news recently issues about the Pastor from the Church of God in Aylmer and the Church of God being against compliance with the rules and regulations relating to COVID. I did a case about 20 years ago, where the St. Thomas Children's Aid Society apprehended seven children from a Church of God family and I represented the Children's Aid Society in that particular case,

Patrick Clancy:

What were the circumstances surrounding that case?

Alf Mamo:

Well, the , the circumstances were that it came to the attention of the Children's Aid Society, that the children were being disciplined, physically disciplined by being hit with a variety of objects. So a children's aid worker went to the house to interview the parents and ask them about that. The parents admitted to using objects, to strike the children as discipline. What I'm telling you is all on the record, because the case went to court and ended up becoming public, except for the names of course, which in child welfare cases are never disclosed. The parents would not when the worker said, "can you promise me not to, not to discipline the children by striking them with objects ? And let's, let's meet at the agency and let's talk." They said, "we want to talk to our pastor, but , we will never agree not to strike children if they deserve to be struck, because that's what God mandates, and we're not gonna go against the word of God. We don't care what the law says." So it was a young social worker who kept her cool and then talked to the supervisor and decided that she's going to apprehend the children. There were seven children ages probably from about five to 15 or 16. When it became evident that she was going to apprehend the children, which means take them out of the house she had to call the police, to assist her with doing that. First of all, you're going to need more than one car to transport them out to a foster home. As she made that decision, people started to arrive who were members of the congregation of the Church of God and things got really crazy because the house ended up being full of people, outside was full of people. The London Free Press was called and they were outside taking pictures. The children were instructed to go limp, not to resist, but to go limp . So the children go limp as a result. We get these police officers in full uniform and bulletproof vests having to literally take the children out on their shoulders, carrying them out on their shoulders, to the cruisers. The London Free Press the next day had on the front page pictures of these girls with bonnets and long dresses being carried by a b urly police officer and, and these young men dressed in black w ere on the front page. Very polite, very good, very compliant kids they were good, they did not give the workers any trouble except for simply going limp as they were instructed to do. B ut unfortunately, of course, t here were two issues. The children's aid did not have one home in which they can place seven kids, so the kids h ad to be separated and of course the children's aid did not have foster homes where the foster parents belong to the church, which was the Church of God which was a kind of a Mexican Mennonite church. So the children were divided into three separate homes, which was really very unfortunate because the children were pretty bonded to each other. Of course, in a home that did not have the same kind of rules, you know, the rules about the kind of music they could listen to, what to wear, how you behave were very important to them. So, I mean, I say all that, because obviously t hat worker was right to apprehend the children because, you know, they were being,

Patrick Clancy:

What kinds of things, like what kinds of corporal punishment, I guess, were being administered?

Alf Mamo:

Being struck with what's known in the case is weapons. Weapons is anything that is not natural, not your hand. They don't interpret your hand as a weapon, but whether it's a twig or a piece of wood from a tree or a ruler, they used to use wire hangers, electrical cord, whatever they had handy. They had a process, they would sit down and talk to the child about what it is they did wrong and tell them that God required them as a parent to discipline them with love, and then proceed to carry out the discipline.

Patrick Clancy:

How did the CAS come to learn of the discipline? I'm just wondering,

Alf Mamo:

There was at least one other family that the children's aid had contact with from the same church that brought the fact that they disciplined to the attention. One of the things that happened was that one of the children at one point , accidentally spilled some boiling water on their lap. It was brought to the attention of the children's aid that this had happened and that the parents did not take the child for medical treatment and the children's aid then looked into it and indeed found out that it was a very, very bad burn. They went and took the child to the hospital and the hospital required quite a bit of treatment and almost had to have skin grafting in order to solve the problem. So that got into questioning and that was a pure accident, you know, but they talked about why the child wasnt given medical attention. They said our Bible teaches us that we don't run for medical attention unless it's really absolutely necessary. We didn't think it was necessary and the child will be fine. So that was into the family. When the children's aid interviewed the children, the one thing about the children is that they were absolutely truthful, they didn't try to lie, as were the parents, no attempt. The reason it became such a big case is because the parents then retained lawyers who took the position that the parents were protected by the Charter of Rights and Freedoms that they did not have an obligation to talk to the children's aid or to admit, and anything that they admit cannot be used. They use criminal standards that anything you say can be taken against you, you have a right not to talk to the police. You have a right, not to talk to the workers and when it came to the child protection proceedings, that you did not have to comply with the rules that require you to file documentation in response to the application and admit to having to look at whether what you've done is accurately portrayed in the application. They had as , as a result of religion, and the freedom of religion that protected them, that they could discipline their children the way they wanted that became a big deal. And obviously it had a lot of interest because the issue that the freedom of religion allows you to then abide by rules that offend our rules, you know, the rules of our society, that's an important issue. So we went through a long hearing, eventually , Justice Schnall decided that no, the parents are not protected by the Charter and they h ad to discipline if it offends t he criminal code, then it's subject to someone apprehending the children, then there was an appeal, but then t he appeal was dismissed.

Erin Fisher:

Did takes some of the wind out of your sails to be questioning people that are perfectly honest, the whole time they're on the stand?

Alf Mamo:

Well, it's interesting. You say that because as lawyers, which is really a fascinating insight, you know, for a trial lawyer, you assume that people are not going to tell the truth, but they're going to say things that are self serving , right? So as lawyers , we spend most of our time, well look at, television shows, the old Perry, Mason, and so many law and order, whatever cross-examination is always about this, tricking someone to tell you something that is against their interests that you want, because you assume they're not going to tell you the truth. So you bend yourself around like a pretzel to make sure you get something. So you could say, "aha", you know, and in this case, there was none of that because they, they freely admitted what they did, and they did not dispute anything that they did. They did not minimize it. The parents and the children and the pastor. The pastor who gave evidence in that case also, you know, took the position that "our religion requires us to do this, and we're going to listen to God. We're not going to listen to your laws."

Erin Fisher:

There was a big media frenzy around this particular case that seemed to have been whipped up by the church. Do you, do you know what the point was of that?

Alf Mamo:

My take is that different communities have a different culture depending on the leaders. So for example, there's a big Mennonite community around the Kitchener Waterloo area. You know, you go to the Mennonite farm there, and everybody loves, loves to go there, but you never hear much about them. I think it's , it's fair to say that the pastor in this case was someone who wanted to make a point and he anticipated that the day will come when the children's aid are going to come in and intervene, because there was a previous family where there that contacted children's aid. A number of families actually left the Aylmer area and went a cross to the U nited States. Even when this case happened, b ecause they were afraid that children's aid is g oing t o go in and start apprehending every child from the Church of God. So to some degree, I think the pastor was looking for a test case, and it wasn't coincidental that all of a sudden, once the children's aid decided to apprehend these children, that much of that congregation ended up in that house in and outside o f that house, t hat they had a system of communicating with each other to make that happen as a show of strength.

Patrick Clancy:

What like a pyramid scheme almost?

Alf Mamo:

Well, it was, yeah, I think there was a system where, you know, one person will call two people that everyone will call two people and it was all prearranged.

Erin Fisher:

A telephone tree.

Patrick Clancy:

How many congregants ended up being there? I guess the day that the children were taken away?

Alf Mamo:

I think it probably around 60 to my recollection it was about 20 years ago but around that, it was a pretty packed living room and front yard.

Patrick Clancy:

I read the case actually not too long ago. Reading the judge's decision, she wasn't very impressed with pastor Hildebrand. I guess I'll just ask you, do you think he had the best interest of the children in mind or the best interest of the church?

Alf Mamo:

I think to be fair to pastor Hildebrand, he would identify the best interest of the church and the best interest of the children as being one. What we might look at and think it's it's manipulation, which is not in the children's best interest to him would be a necessary step in order to ensure their religious freedom.

Patrick Clancy:

What about the parents?

Alf Mamo:

The parents kind of felt the same way. The parents were very quiet and reserved. You know, the pastor was much more outgoing and , and certainly much more articulate, but I think they all felt that they were doing the will of God.

Patrick Clancy:

If you had have been called upon to arbitrate that case privately, is there anything you would have done different or was that not the type of case that could ever be the subject of an arbitration?

Alf Mamo:

It's not like to be privately arbitrated but what happened, I mean, the interesting thing is what happened after. So the children were in foster care for, for a while . Not for very long, maybe, I can't even remember now, maybe a couple of months. Eventually there was a detente, you know, kind of a treaty, which was entered into between the church and the children's aid in terms of a protocol. The church members and the pastor would never say "we will never, ever physically discipline the children", but what we kind of worked on was, "okay, 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". So it was a question of educating the parents and getting them to buy into different ways of affecting children's behavior without using corporal punishment so that it didn't have to get to that. So, 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. Except like I said before, you didn't have the decision that says this is against the law, which gave him motivation for the church to negotiate. Before that they did not feel that they needed to negotiate.

Patrick Clancy:

On the next episode of Obiter.

Erin Fisher:

When we talk about hoopla, he's got another big hoopla going on right now about anti mask advocates and he's holding in-person services inside his church right now in the midst of the pandemic.

Alf Mamo:

What I find frankly , um, offensive about this, however, is the pastor's looking at what's going on as a conspiracy or a manipulation by the establishment to manipulate and control people.