30 July 2014

New Access to Justice Blog Launched

I have just published a new blog on access to justice issues and solutions. Access to Justice in Canada is directed to lawyers and discusses the things that lawyers can do, individually or in small groups, to make material improvements to the accessibility of justice for everyone.

The new blog results from three things that have begun to trouble me of late. First, as the final report (PDF) of the Family Justice Working Group of the Action Committee on Access to Civil and Family Justice points out, there are limited governmental resources available to put toward the reform of the justice system. Second, the law reform initiatives presently underway across Canada have all adopted processes that will take some time to bear fruit, and have time-lines that are looking at two, three and more years to completion. Third, I fear that we are approaching a point of access to justice saturation, fatigue and burn-out. 

Although I support the inclusive processes adopted in provinces such as British Columbia and Alberta that take a multidisciplinary and expansive approach to reform, I worry that without some concrete, tangible evidence of progress, the public enthusiasm for change we enjoy at present will begin to dissipate. However, I know from my own personal experience that there are lots of things that lawyers can do to improve access to justice that don't need to wait for new rules of court, overhauled legislation, new triage processes and new social programs, that don't need to wait for the approval of the law society, government or the bench, that can be implemented now, at little or no cost to the individual lawyer.

I have already posted a number of suggested access to justice activities on the new blog, and will post more in the months ahead. My hope is that the blog will become less of an exercise of me talking from a soapbox and more of a forum for discussion and debate and, most importantly, a conversation about the things that all of us, acting together or alone, can do improve access to justice, and I invite you all to participate. 

Please check out the Access to Justice in Canada blog, at accesstojusticeincanada.blogspot.ca, and join me on this journey.

29 July 2014

New Guidebook to Settlement Processes for Self-represented Parties

Professor Julie Macfarlane, along with Hannah Bahmanpour and Katrina Trask, has just published her latest resource for persons without counsel through her National Self-represented Litigants Project.

"Settlement Smarts" for Self-represented Litigants (PDF) is intended to help people work more effectively in settlement processes, whether the person on the other side of the table is also without counsel or a lawyer. Settlement Smarts talks about judicial settlement processes, mediation and negotiation, and offers helpful tips about preparing for these processes, strategy and what happens when agreement is or is not reached.

Settlement Smarts is one of a growing number of excellent resource offered through the National Self-represented Litigants Project. Another helpful paper is Coping With the Courtroom: Essential Information and Tips for Self-represented Litigants (PDF), by Prof. Macfarlane and Ms Bahmanpour, which discusses the basics of courthouse operations and courtroom procedures, and guides readers through opening statements, the direct- and cross-examination of witnesses and expert witnesses, and closing arguments.

Although links to material on the internet can be distributed as you wish, contact the National Self-represented Litigants Project directly — there's an email address at the foot of each page of its website   for permission to distributed printed copies of these helpful papers.

24 July 2014

Reports on Justice Forums Released

The BC Ministry of Justice has just released its summary report (PDF) of the proceedings at the third justice summit, held on 4 and 5 May 2014 in Vancouver. The report offers no tidy synopsis, but the topics discussed at the summit included the early resolution of legal disputes, resolving legal disputes out of court, improving court processes, and assessing the outcomes of a reformed justice system.

These summits are mandated by s. 9 of the Justice Reform and Transparency Act. Reports on all three summits to date can be found on the Ministry's website.

Not to be outdone, Alberta Justice and Solicitor General has published its report (PDF) of the proceedings at the Joint Action Forum on civil and family justice held in Edmonton on 20 November 2013. The purposes of the forum were to discuss the current state of the justice system and what an improved, "citizen-centred" justice might look like, and discuss how movement toward a reformed system may be initiated.

11 July 2014

New Report on Legal Aid In British Columbia: Authors Argue Underfunding Breaches Human Rights Obligations

Lawyers' Rights Watch Canada has just released a draft report for public comment, "The Right to Legal Aid: How BC's Legal Aid System Fails to Comply with International Law" (PDF)Legal aid in British Columbia is administered by the Legal Services Society. The Legal Services Society is funded primarily by the provincial government; fund are also provided by the BC Law Foundation.

The authors of the new report argue that reductions in funding leave "even the most basic legal aid needs of British Columbians" unmet, with a disproportionate impact on women and marginalized groups, which ultimately undermines the "entire justice system." The authors also note that the inadequate funding of legal aid has social impacts that extend far beyond the justice system to affect the "social fabric of British Columbians and their economy."

Comment on this important report is open until 8 August 2014. Read the LRWC's statement on the new report. Read Ian Mulgrew's article on the new report from the Vancouver Sun.

06 July 2014

Judge Criticizes Limited Legal Aid Funding Available for Family Law Cases

On 3 July 2014, Mr. Justice Crawford, a distinguished judge of the British Columbia Supreme Court for the last fifteen years, released a partial decision in the case of M.J.A. v R.D.A. which, along with addressing custody and guardianship of the parties' two children, offers some commentary on the difficulties facing litigants who represent themselves in court and the sorry state of the legal aid coverage available in family law disputes.

If I understand the facts correctly, the mother started this case in 2010. The trial began with five days in November 2013 and continued over two days in March 2014. Although sufficient evidence was presented that most of the issues could be resolved, the judge determined that a needs of the child assessment under s. 211 of the Family Law Act was necessary and ordered that one be prepared. Both parties were of limited means, and although the father was able to engage counsel, the mother represented herself throughout.

After summarizing the circumstances leading to trial, the judge offered these comments about the mother's self-representation, the difficulty of self-representing and the effect it had on the efficiencies of the trial process, and the woeful state of legal aid coverage in family law matters:
"[11] What has happened is the mother has proven quite inadequate to deal with the circumstances of a court room. Nor have I had the privilege of a current sociological or psychological report to assist the Court in something as fundamental as ensuring the children maintain a healthy relationship with their mother. 
"[12] ... I would note that [Mrs. A] described the task of being her own counsel as 'challenging' and I agree with her, it is an art that only comes with years of labour in courtroom situations. The members of the public that have to go in to a trial process in a courtroom without counsel are severely challenged, and the need for adequate funding for legal aid was yet again played out in front of me. 
"[13] If Mrs. A. had counsel I venture to say the evidence in this matter would have been focused and the trial done in three days and if we had the benefit of a s. 211 report assessing the needs of the children and the abilities of the parents, I would have had a far better understanding of Mr. A.'s concerns and Mrs. A. concerns. However, in the absence of a sensibly funded family legal aid system, I am left to try and assist the parents and especially the children in moving on with their lives, keeping them stable in their father’s house (with his new partner) but seeking to gradually improve Mrs. A.'s access to the children to foster a relationship with her children, an aspiration which I note is shared by Mr. A."
I have often wondered about the difference in the cost of funding the services of a lawyer at legal aid's parsimonious rate versus the total cost to the system resulting from the inevitable delays, adjournments and false starts that occur when a litigant is forced to represent him- or herself. It is really more cost-effective to withhold legal representation from someone rather than cover the cost of counsel at $89 per hour?

(Interestingly, two studies recently completed by the Canadian Research Institute for Law and the Family discuss Alberta lawyers' and judges' views that self-represented litigants :
  • always or usually have unrealistic expectations about the outcomes of their cases;
  • usually or sometimes are less likely to settle than litigants with counsel;
  • generally achieve the same or worse outcomes on parenting issues than litigants with counsel;
  • generally achieve worse outcomes on support issues than litigants with counsel; and,
  • generally achieve worse outcomes on property issues than litigants with counsel.
Assuming that the observations of the bench and bar bear some relation to reality, they are yet another clarion call for the proper funding of legal aid in family law matters.)

One other aspect of this decision is worth noting, namely that the needs of the child assessment was ordered to be prepared by a family justice counsellor, a Ministry of Justice employee attached to the Provincial Court. Said the judge (cites omitted):
"[17] I have advised the parties I will seek a 'Views of the Child' report pursuant to s. 211 of the Family Law Act. In other words under s. 211, I will and do hereby order a report from a family justice counsellor to assess the needs of the children in relation to the family law dispute, the views of the children in relation to a family law dispute, and the ability and willingness of a party to a family law dispute to satisfy the needs of the children. I understand the New Westminster and Richmond Family Justice Centre will authorize the appropriate counsellor who I appoint to assess and report to the Court and to the parties no later than (and hopefully before) November 30, 2014."
This illustrates the rather important power of the Supreme Court to make use of Provincial Court family justice counsellors, whose assessments are prepared at no cost to the parties. Normally, needs of the child assessments used in the Supreme Court are prepared by jointly-retained psychologists, psychiatrists or registered clinical counsellors at a cost ranging anywhere between $5,000 to $15,000 — sometimes higher depending the assessor's need to travel and the complexity of the issues being looking into — and can usually be completed within three to six months. On the other hand, although the assessments of family justice counsellors are free, family justice counsellors are not psychologists, psychiatrists or registered clinical counsellors, only a limited number of them are trained to prepare these assessments and it can take a year or longer before their assessments are complete.

Assuming that the benefit of getting a needs of the assessments for free outweighs the waiting period and other disadvantages, the decision in M.J.A. v R.D.A. will be a useful precedent for lower-income parties.

02 July 2014

Child Abduction and AMBER Alerts

There seem to have been an unusually high number of AMBER Alerts lately and I thought I'd post a brief summary of the program and the parts of the Criminal Code that talk about child abduction.

AMBER Alerts

The AMBER Alert concept was developed in the United States in the late 1990s as a way of using their Emergency Alert System to broadcast information about child abductions as widely as possible as soon as possible. Although "AMBER" officially stands for "America's Missing: Broadcast Emergency Response," it's generally understood that the program was named for Amber Hagerman, a young girl who was abducted and killed in 1996.

In Canada, the AMBER Alert system is an agreement between the police forces, media and public agencies in each province that allows urgent public appeals for information to be distributed, usually by radio and television media interrupting their regular programming with special news bulletins. However, according to the RCMP's webpage on AMBER Alerts, such alerts are only intended for "the most serious, time-critical abduction cases" and are not "used for cases involving runaways or parental abduction, except in life-threatening situation."

According to the RCMP, AMBER Alerts can be activated when all of the following four criteria are met:
  • police have confirmed that an abduction has happened;
  • the victim is a child, or a person with a documented physical or mental disability;
  • police have reason to believe the victim is in danger of serious injury; and,
  • information is available that would assist in the recovery of the victim if broadcast to the public.
If you have information that could assist when an AMBER Alert is broadcast, call 9-1-1. For more information, see these AMBER Alert webpages for these provinces:
Alberta
British Columbia
Manitoba
New Brunswick
Newfoundland and Labrador
Nova Scotia
Ontario
Prince Edward Island
Quebec
Saskatchewan
You can also sign up for free alerts delivered to your wireless device, provided by the Canadian Wireless Telecommunications Association.

The Criminal Code

The Criminal Code is the federal law that deals with criminal offences such as assault, possession of stolen property and abduction. There are four section of the Code that deal specifically with the abduction of children.
Under s. 280, it is an offence to unlawfully take a child under the age of 16 out of the care of a parent, a guardian or someone else with the lawful care of the child, against the will of that parent, guardian or person.
  • "Unlawfully" in this context means without a legal right. A police officer or a child protection worker might have the right to remove a child in certain circumstances. Someone with a court order allowing him or her to take the child would also have the right to remove the child.
  • A "guardian" is someone who has custody or control of the child, including as a result of a court order.
  • Someone who isn't a parent or guardian but has the "lawful care" of a child might be a child protection worker, foster parent or a corrections officer.
  • The abduction must be without the consent of the parent, guardian or someone else with the lawful care of the child.
  • Under s. 285, this section will not apply if taking the child was necessary to protect the child from harm. 
Under s. 281, it an offence for someone who isn't a parent, a guardian or someone else with the lawful care of a child to take a child under the age of 14 out of the care of that parent, guardian or person with the intention of depriving that parent, guardian or person of the child.
  • "Take the child out of the care" of a parent, a guardian or someone else with the lawful care of a child includes detaining the child, luring the child away, hiding the child or giving the child a place to stay.
  • The abductor must intend to deprive the parent, guardian or someone else with the lawful care of the child of possession of the child.
  • Under s. 284, this section will not apply if the person taking the child has the consent of the parent, guardian or someone else with the lawful care of the child. 
  • Under s. 285, this section will not apply if taking the child was necessary to protect the child from harm. 
Under s. 282, it is an offence for a a parent, a guardian or someone else with the lawful care of a child to take a child under the age of 14 contrary to the terms of a custody order, with the intention of depriving a parent, a guardian or someone else with the lawful care of the child of the child.
  • "Take a child" includes detaining the child, luring the child away, hiding the child or giving the child a place to stay.
  • The abductor must intend to deprive the parent, guardian or someone else with the lawful care of the child of possession of the child.
  • Under s. 284, this section will not apply if the person taking the child has the consent of the parent, guardian or someone else with the lawful care of the child. 
  • Under s. 285, this section will not apply if taking the child was necessary to protect the child from harm. 
Under s. 283, it is an offence for a a parent, a guardian or someone else with the lawful care of a child to take a child under the age of 14 with the intention of depriving a parent, a guardian or someone else with the lawful care of the child of the child, whether there is a custody order in place or not.
  • "Take a child" includes detaining the child, luring the child away, hiding the child or giving the child a place to stay.
  • The abductor must intend to deprive the parent, guardian or someone else with the lawful care of the child of possession of the child.
  • Under s. 284, this section will not apply if the person taking the child has the consent of the parent, guardian or someone else with the lawful care of the child. 
  • Under s. 285, this section will not apply if taking the child was necessary to protect the child from harm. 
  • The attorney general must approve charges under this section.
Under s. 286, having the consent of the child or saying that it was the child's idea is not a defence to a charge of abduction under ss. 280, 281, 282 and 283.

Other related offences include kidnapping (s. 279(1)), unlawful confinement (s. 279(2)) and hostage taking (s. 279.1).

Abductions by a Parent

One of the recent AMBER Alerts was broadcast on 28 June 2014 in response to a father's abduction of his nine-month old child. I am aware of concerns that have been raised to the effect that the AMBER Alert was inappropriate as the abductor was the child's father. However, the simple fact of parentage does not mean that a parent is entitled to the possession of his or her child or that a parent cannot unlawfully remove his or her child from the lawful care of someone else. 

Remember the criteria for the issuing of AMBER Alerts described at the beginning of this post. First, ss. 282 and 283 of the Criminal Code describe the circumstances when a parent's removal of his or her child can constitute abduction. Second, the fact that the abductor is a parent does not mean that the child is not in a life-threatening situation; in fact, a parent's willingness to breach a court order or take a child without the consent of the other parent suggests that the situation is somewhat volatile and that the risk to the child is elevated. (In the case of the recent alert, the Calgary Police Service's news release states that in addition to the charge of abduction, the father is also facing changes of uttering threats and breaching bail conditions. Allegations of violence and threats, whether true or not, are pretty much par for the course in cases of parental abduction.)

However, remember also that the RCMP's policy is to not issue AMBER Alerts when the alleged abductor is a parent. This is, in most cases, entirely appropriate. In high-conflict disputes especially, separated parents are often way too quick to push the panic button, whether out of genuine fear of harm, as a means of punishing a parent who is late returning the child or in an attempt to exact revenge or paint the other parent in a poor light. 

26 June 2014

SCC to Hear Appeal Involving Challenge to Validity of Child Support Guidelines

The Supreme Court of Canada today granted leave to appeal in the case of Strickland v Canada, a decision of the Federal Court. Two things make this unusual. First, the Supreme Court of Canada hardly ever grants leave to appeal in family law cases. Second, the appeal concerns the validity of the Child Support Guidelines.

The Child Support Guidelines were implemented by the federal government in 1997. They are a regulation to the Divorce Act; the Divorce Act is the federal law, in force across Canada, that deals with divorce, child support, spousal support and children's parenting arrangements after separation. (The Guidelines have been adopted by all of Canada's provinces and territories, except Quebec, as a part of their local laws on family breakdown.) The Divorce Act says that when a judge is making an order for child support, the judge must do so "in accordance with the applicable guidelines."

Although there are some exceptions, s. 3(1) of the Guidelines says that "the amount of a child support orders ... is ... the amount set out in the applicable table, according to the number of children ... and the income of the spouse against whom the order is sought." The tables are probably the Guidelines' best known feature and, as s. 3 suggests, they set out how much money must be paid as child support according to the payor's income and the number of children support is being paid for.

According to the decision appealed from, the appellants argued that the Child Support Guidelines "contradict the statutory provisions under which they were enacted," and therefore the federal government lacked the proper authority to implement them. The appellants took the view that the Guidelines:
"[5] ... do not appropriately reflect the requirements of the Divorce Act, which mandate that [child] support is a joint spousal obligation and is to be based on the relative ability of the spouses to contribute to the support of the children of the marriage. [They] argue that the Guidelines overcompensate the former spouses where there is a joint custody arrangement and the children reside part of the time with the payor parent."
One of the appellants signed an interim child support agreement and sought to lower the amount of his payments. Another appellant was making voluntary payments of child support which were calculated under the Guidelines. Another appellant was paying child support to one spouse as a result of an arbitrator's award and child support to a second spouse as a result of a court order. Another appellant was receiving child support and agreed that the amount should be lowered.

The reasons from the Federal Court don't tell us much more about the appellants' arguments than this, as the decision primarily concerns the federal government's application to turf the appellants' claim on the bases that the appellants aren't apply to make their claims, that their claims are no more than roundabout ways of attacking orders they don't like and that their claims are abuses of process. The court allowed the federal government's application, and it is this decision which the appellants have successfully brought to the Supreme Court of Canada.

Ultimately, this appeal is of primary importance as a result of the Federal Court's view on whether the appellants had the right to challenge a federal regulation, however if the Supreme Court of Canada allows the appeal, it will be very interesting to see what becomes of the challenge to the Child Support Guidelines when the claim is finally heard.

My thanks to Eugene Meehan's Supreme Advocacy newsletter for alerting me to the success of this leave application.