27 December 2008

2008 In Review, Part 1: Legislation and Rules Reform

There were two interesting developments in the laws and rules relating to family law litigation in British Columbia in 2008, and both related to the close of public consultations on significant potential reforms.

First, the Attorney General's Family Relations Act Review came to a close early in the year. The Review was a soup-to-nuts consultation on the Family Relations Act, the most important piece of provincial legislation on family breakdown, which raised some controversial proposals (should parents with a right of access be forced to exercise that right?) and challenged many of the core principles of family law (should the property division rules that apply to married spouses also apply to unmarried couples?).

The consultation ended with a invitation-only round table at the posh Wosk Centre for Dialogue on two final issues: whether family violence should be a factor that the court must consider when evaluating the best interests of children; and, whether children should be included in the court process in some way? While the round table stirred up some interesting discussion, it ended on a sour note when an official from the attorney general's office, in the course of her concluding remarks, advised that no space had been reserved on the legislative agenda for any bills on the Family Relations Act... leading to the rather sad conclusion that there might not be any governmental interest in reforming the FRA at all.

A complete archive of the discussion papers released by the attorney general's office in the course of the review can be found at http://www.ag.gov.bc.ca/legislation/archive.htm#fra.

Second, a set of draft rules were released for public comment by the Family Justice Review Task Force (FJRTF) that would apply to family law actions in the Supreme Court. The FJRTF was created in 2003 by the BC Justice Review Task Force, a joint project of the Law Society, the Canadian Bar Association British Columbia, the attorney general, the Supreme Court and the Provincial Court.

The draft rules are the culmination of the FJRTF's work, and follow up on the group's 2005 report A New Justice System for Children and Families. In that report, the FJRTF recommended that the rules and forms governing family law procedures be streamlined and simplified and that a single set of rules govern all family law cases.

The reaction of the family law bar to the new rules was decidedly mixed. On the one hand, I think it's safe to say that most lawyers liked the idea of a new set of rules just for family law cases, and suported the general idea of reform. On the other, however, many lawyers feel that the proposed restrictions on disclosure and discovery practices are excessive and that their ability to conduct the course of their clients' cases is unduly restricted.

The rules are available for public comment at http://www.bcjusticereviewforum.ca/familyrules/index.cfm and http://www.bcjusticereview.org/working_groups/family_justice/family_justice.asp, although the deadline for comment will expire on 31 December 2008.

Any new rules are not expected to be implemented until 2010.