28 May 2014

Unified Family Court on the Table Again?

Yesterday, an article appeared in both the Edmonton Journal and the Calgary Herald announcing that the interim premier of Alberta, Dave Hancock, supports the idea of a unified family court in the province. This is welcome news indeed.

Each province in Canada has two trial courts, a provincial court, established by the provincial government, and a superior court, established by the federal government under s. 96 of the Constitution Act, 1867. Although the superior courts are capable of dealing with every legal issue, the provincial courts only have the jurisdiction given to them by federal and provincial governments. As a result, family law matters can be heard in both the Provincial Court of British Columbia and in the Supreme Court of British Columbia, but only the Supreme Court can make orders about:
  • marriage, divorce and the validity of marriages,
  • the division of family property and family debt under the provincial Family Law Act,
  • the division of property under the common law,
  • family trusts, 
  • restraining orders about property and debt,
  • adoption, and
  • custody, access, child support and spousal support under the federal Divorce Act.
This leaves an overlapping jurisdiction between the Provincial Court and the Supreme Court under the Family Law Act on:
  • the recognition, appointment and removal of guardians,
  • parental responsibilities and parenting time,
  • contact,
  • child support and spousal support, and
  • protection orders.
But there are other important differences too. The rules and forms of the Supreme Court are far more complicated and far less accessible than those of the Provincial Court. Proceedings in the Provincial Court are free, while the Supreme Court charges filing fees as well as fees for each day of trial. There are Provincial Court buildings in most parts of the province; the Supreme Court only has buildings in major urban centres. 

As a result of this arrangement, people often start proceedings in the Provincial Court, only to have them eventually kicked over to the Supreme Court; the same family can be in both levels of court at the same time, pursuing similar or different legal issues; both courts can make orders on the same issues; and, the justice system is even more confusing than it is already. It is hardly surprising that most of the reports and studies looking at the family justice system have encouraged the creation of a single court, with one set of rules and one set of forms to handle with all family matters that must go before a judge for resolution.

In A New Justice System for Children and Families (PDF), published in 2005 by the Family Justice Reform Working Group of the Justice Review Task Force, the Working Group wrote that:
The system we make available to them today is complicated, intimidating and costs a great deal of money just when the family’s income is being stretched beyond its limits. Increasing numbers of people find themselves forced, by financial circumstances, to make their way without legal representation through a process designed for lawyers. A small number of these people go to trial on their own. Many settle, whether or not they have the information and support they need; some walk away, their conflict unresolved and possibly giving up what they need or were entitled to. 
Accordingly, it "strongly urged" a move towards a single court for family law matters. In Meaningful Change for Family Justice: Beyond Wise Words (PDF), the final report of the National Action Committee's Family Justice Working Group published in 2012, the Working Group observed that:
· there is a built-in tendency for adversarial process to polarize spouses and exacerbate conflict;
· parental conflict can be very harmful to children;
· conflict tends to protract process, which already tends to be complex, costly, lengthy and unpredictable;
· justice systems need to do a better job of providing integrated services and multidisciplinary responses to the many “non-legal” dimensions to issues that arise when families are restructuring; and
· the complexity of family breakdown and the relative inaccessibility of the courts results in many family law problems remaining unaddressed and unresolved.
At least partly as a result, two of the Working Group's recommendations are:
Recognizing that each jurisdiction would have its own version of the unified court model, to meet the needs of families and children in each jurisdiction, that the two levels of government cooperate in the completion of unified family courts for all of Canada.

That a unified family court retain the benefits of provincial family courts, including their distinctive and simplified procedures, and that it have its own simplified rules, forms and dispute resolution processes that are attuned to the distinctive needs and limited means of family law participants.
In support of these recommendations, the Working Group observed that:
Modern family law requires specialized knowledge, interpersonal skills and dispute resolution methods. A unified family court consists of judges, professionals and staff who have the experience, aptitude and commitment to work with families and children. A specialized court is best suited to handle the volume and complexity of the work, while at the same time experimenting and innovating with new services and methods of dispute resolution.
(The Canadian Bar Association's 2013 paper, Reaching Equal Justice Report (PDF), noted that "specialized courts, both by problem type and target group, have been demonstrated to contribute to access to justice and quality of decision making" and "generally enhance efficiency.")

Likewise, Alberta's 2001 report of the Unified Family Court Task Force recommended that:
... a unified family court should be established in Alberta expeditiously: 
· to exercise all family-law jurisdictions and powers  
· to provide essential services to people involved in family-law disputes. 
The unified family court should be a division of the Court of Queen's Bench of Alberta.
Interestingly, the government of the day actually accepted these recommendations (PDF), although only "in principle." (The Court of Queen's Bench is, by the way, the province's superior court.)

Anyhow, according to the article, Mr. Hancock, leader of the current government, told the Journal's editorial board:
"It would be more efficient if we had — I'm going to say this out loud and get in trouble — a unified family court, so that there was one court that dealt with all of the issues with respect to child, family, divorce, and property. ... It would be more effective and efficient, and it would be better justice."
Damn right it would. Family law is not like other species of civil law. Family law proceedings involve people in a continuing close relationship, not people whose business relationship terminated long ago. Family law proceedings don't seek remedies for things that happened in the past, they try to make the best possible arrangements for the family's future. Family law proceedings don't end once all appeals have been exhausted, they keep going until the children leave home and finish school. There are few hard-and-fast rules in family law, unlike other areas of the civil law; virtually all decisions are made based on the unique circumstances of the particular family before the court.

Having a specialized bench with the training, experience and skills to deal with the multidimensional — and multidisciplinary — nature of family law disputes, offering one-stop shopping for litigants, is an idea whose time has long since come and needs to be adopted in the remaining provinces without unified family courts, including Alberta and British Columbia. This is not the silver bullet to cure access to family justice. as the courts are only one small part of family justice and are not the sole means by which family law problems are resolved, but it would be a significant improvement from what we have now.

British Columbia established a unified family court for a brief period between 1974 and 1976. It's time to get back on the agendum.

Update: 2 June 2014

According to a recent article in the Calgary Herald, the chiefs of both the Alberta Court of Queen's Bench and the Alberta Provincial Court are interested in having fresh discussions about establishing a unified family court in the province to improve access to justice. The author of the article, Jason van Rassel, also notes that:
"Establishing a family division within Court of Queen's Bench could also allow judges with more experience in family law to specialize."
This is true, and very important. Family law cases cannot be treated like any other sort of civil case. They demand an extraordinary sensitivity and a knowledge that goes far beyond the legislation to appreciate the nuances of age-appropriate parenting plans, the psychology of separation and the effects of parental conflict on children. A specialist bench would be a boon to separating Albertans.

4 comments:

  1. Why did B.C. scrap its Unified Family Court?

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    Replies
    1. Excellent question; I'm afraid I don't know.

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    2. I've spoken to a couple of lawyers who were practicing when the unified family court was operating in BC. One lawyer described it as "an experiment" and said that why it was discontinued was "unclear." Another said that the court "wasn't really unified" as the duties of Provincial and Supreme Court judges continued to be split, and said that the court wasn't really given a chance; she recalled that the effort "just petered out."

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    3. And now I've spoken to someone who was a judge at the time of the unified family court. He said that two courthouses were built for the project, one in Surrey and one in Richmond. These were special courthouses, he said, and were "ringed by counsellors' offices," with 20 counsellors on hand in Surrey and 8 in Richmond. The project wound down following a change in leadership in the Supreme Court.

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