Why the Family Law Act Should Be a Complete Code

A fog of uncertainty and conflicting cases continues to trouble the new Family Law Act. The confusion is understandable, given that barely two years have elapsed since the act came fully into force and that the Court of Appeal has yet to pronounce upon the key areas of controversy, but nonetheless highlights critical access to justice issues that went unobserved and unnoticed under the previous legislative regime which thirty years' of case law had fully explored.

One of these key areas concerns the status of gifts received by spouses and whether such gifts are divisible family property or are excluded from sharing. Under s. 85(1)(b.1) of the act, "gifts to a spouse from a third party" are excluded from the pool of family property that is divided between spouses. However, controversy has arisen as to whether this seemly simple statement captures all gifts to a spouse such that the common law presumption of advancement no longer applies.

(The "common law" is the English legal system in which judges build the law as they decide each case, and is the legal system everywhere in Canada except Quebec. The "presumption of advancement" is a principle of the common law that when a spouse or a parent transfer property to a spouse or a child, the transfer is a gift. The presumption can usually be avoided if the spouse or parent can prove that the transfer was a loan or otherwise show that there was no intention to make a gift. The presumption of advancement is written into the Family Law Act.)

In Remmem v Remmem, Mr. Justice Butler decided that the presumption of advancement no longer applies in British Columbia because the Family Law Act is "intended to be a complete code so that there is no need to examine the intention of the parties." Moreover, if the presumption did apply, the presumption would: require that unmarried spouses be treated differently than married spouses, as the presumption only operates between married spouses; and, undermine the "apparent simplicity and certainty of the property division scheme."

On the other hand, Mr. Justice Masuhara, writing in Wells v Campbell, observed that the act fails to explicitly extinguish the presumption of advancement or otherwise alter the law on perfected inter vivos gifts, and applied the presumption. A similar result was found by Mr. Justice Walker in V.J.F. v S.K.W., who further noted the unfortunate provisions of s. 104(2) of the act,

"The rights under [the part of the act dealing with the division of property] are in addition to and not in substitution for rights under equity or any other law,"

and likewise applied the presumption. I've discussed all three of these cases more fully in my post "Dividing Property under the FLA."

The different conclusions reached in these cases reflects more than a disagreement between judges; they reflect two of the fundamental barriers to accessible justice created by our legislation on family law.

Firstly, nothing in the Family Law Act tells the reader that she must look anywhere other than the act to understand her right to share in the property accumulating during her relationship. Nothing in the act hints that the presumption of advancement exists, never mind the other common law principles like the presumptions of gift and resulting trust, the doctrine of unjust enrichment or the constructive trust. How would someone leaving a relationship ever come to the conclusion that she needed to look anywhere other than the legislation on the division of family property to figure out her and her spouse’s rights? What would make her even suspect that there might be other rules to consider than those set out in the act?

Secondly, by injecting the principles of the common law into the division of family property, the certainty created by the Family Law Act – such as it is – is substantially undermined. Vagueness in legislation has a number of negative effects in family law matters: it makes the results of disputes indeterminate and potentially unknowable; it broadens the range of likely outcomes; in broadening the range of outcomes, it does nothing to limit spouses’ hopes and expectations about the result of their cases; and, in failing to limit spouses’ expectations, it promotes conflict.

I have written elsewhere about the need for legislation on family law to be clearly written and comprehensible to the average reader. I have also written about how legislation on family law that fails to limit the range of likely outcomes encourages a single-serving approach to justice that, in serving the individual well, creates uncertainty and a muddled body of case law for everyone else. I’ve also written about the how the chances of settlement improve when individuals’ expectations as to outcome lie within the range of likely results and how the chances of settlement correspondingly diminish when litigants have unrealistically high expectations, and will say no more on the matter.

In my view, Mr. Justice Butler’s approach to the Family Law Act, although undermined by s. 104(2), is much to be preferred in the context of family law disputes. If I had my druthers, the legislation on family law would indeed be a complete code, to both enhance access to family justice and dampen conflict by constraining parties’ expectations.

It seems to me that there are at least three principles that should be applied to the design and drafting of legislation on family law subjects if access to justice is a goal worth pursuing:

1. The legislation on family law should be written as clearly and concisely as possible. The average person, possessed of average intellect and average literacy, ought not be required to retain counsel to read and understand the legislation applicable to her circumstances. Family justice is inaccessible when the governing legislation is incomprehensible.

2. The legislation on family law should be exhaustive of the subject matter it purports to address. It is not unreasonable for an individual to expect that reading the legislation on the division of family property would provide all of the information relevant to the division of family property. Family justice is inaccessible when critical sources of law exist parallel to and unacknowledged by the governing legislation.

3. The legislation on family law should provide certainty as to the results of proceedings commenced under that legislation. People reading the legislation should be able to understand how the legislation applies to their circumstances and predict the likely outcome of proceedings under that legislation. Family justice is inaccessible when the result of the application of the governing legislation is indeterminate.

Much of the present efforts toward justice reform is focused on improving public legal education, redesigning justice processes and integrating social services within justice processes. These efforts necessarily contemplate revision of the rules of court, but there are more fundamental rules that must also be considered. Reform of the legislation on domestic relations must not be overlooked as we work to improve the accessibility of family justice.

It seems to me that the Family Law Act, and access to family justice for British Columbians, would be greatly improved if s. 104(2) was amended to limit the application of other laws to the relevant legislation of British Columbia, like the Land Title Act or the Partition of Property Act, and to expressly extinguish the application of common law principles to the rules about family property and excluded property under the act.

A version of this post was originally published in the legal news magazine Slaw on 15 May 2015.

"Litigants' Rights and Responsibilities" Updated and Relocated

I have recently updated the content of the Litigants' Rights & Responsibilities page of this blog and moved it to a new home in my access to justice blog where it seemed to have a better fit. The transplanted page focusses on the rights and responsibilities of litigants without counsel, but applies to everyone who's involved in a civil court proceeding in Canada. The page talks about what litigants should expect from judges, lawyers and court staff, the help they can provide and they help they cannot. It also talks about litigants' obligation to learn about the rules of court, court processes and the law that applies to their proceedings.

I have been involved in a fair number of committees and organizations looking into rules reform, justice reform and access to justice over the years. Litigants' Rights and Responsibilities was something I first published in 2012 as a sort of bill of rights for litigants without counsel when I realized that we were spending a lot of time talking about the "problem" of self-represented litigants and the difficulties they at times pose for judges, lawyers and court staff, and not spending a great deal of time talking about the expectations litigants without counsel are entitled to have of judges, lawyers and court staff. Although the former approach is reasonable and understandable for those who spend their professional lives in the justice system, the latter recognizes that the justice system doesn't belong to us but to the clients whose need for justice it serves.

The contents of this page represent only my views and opinions, and I fully expect that others will take a different perspective on things; in all likelihood I have overlooked other important issues that need to be raised in the context of a discussion of litigants' rights and responsibilities. I welcome your contributions, comments and criticisms. In the meantime, I have preserved the Litigants' Rights & Responsibilities page here in order that the important comments that have been made since it was first posted will not be lost.

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.

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.

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.

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.

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.

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.

The Dispute Resolution Spectrum

Access to justice has become a critical concern of academics, practitioners, courts and governments over the last decade or so, arguably culminating in the final report (PDF) of the national Action Committee on Access to Justice in Civil and Family Matters, convened at the urging of Canada's Chief Justice. Part of the national conversation on this issue is the idea that the term "family justice system" includes more than court processes, and ought to include all means of dispute resolution and perhaps even the multidisciplinary social services that support separating and separated families.

This prompted me to think in a more organized manner about the dispute resolution mechanisms we currently employ in family law matters, about the traits they share in common, about their costs and about their efficiencies. At one end of the spectrum of options is negotiation, which offers the greatest opportunity for personal choice and self-determination at the least cost, and at the other end is litigation, which offers the least room for personal choice and comes at the highest cost:

Loss of Self-Determination	Dispute Resolution	Extent of Intervention	Flexibility of Process	Resources Required	Probable Cost	Inefficiency of Process
	Negotiation	Consensual, no intervention; locus of control internal to system	Highly adaptable, no rules	Some external supports, lawyers as needed	♦	♦♦♦
♦	Mediation	Consensual, minimal intervention; locus of control internal with guidance provided by mediator	Moderately adaptable, some rules	Mediator, lawyers as needed, valuators as needed	♦♦	♦♦
♦♦	Collaborative Processes	Consensual, extensive intervention; locus of control internal with intensive guidance provided by team	Highly adaptable, some rules, process-heavy	Lawyers, coaches, financial experts as needed, child experts as needed	♦♦♦	♦♦♦♦
♦♦♦	Arbitration	Nonconsensual except for entry into process, extensive intervention; external locus of control	Somewhat adaptable, many rules but may be determined by parties, process-heavy	Arbitrator, lawyers as needed, valuators as needed, child experts as needed	♦♦♦	♦
♦♦♦♦♦	Litigation	Nonconsensual, extensive intervention; external locus of control	Not adaptable, many rules, process-heavy	Judge, court staff, lawyers as needed, valuators as needed, child experts as needed	♦♦♦♦♦	♦♦♦♦♦

This led me to two observations, both of which may be trite:

1. Individuals' ability to determine the result of a dispute inversely correlates to the extent of the formal structure required by a dispute resolution process.

2. The amount of knowledge required to resolve a dispute roughly correlates to individuals' loss of autonomy in the dispute resolution process.

And that's my thought for the day.

The Case for Family Justice Reform and Access to Justice: C.A.J. v N.J.

A few days ago, Mr. Justice Bernard of the Supreme Court of British Columbia released his 174-paragraph judgment in C.A.J. v N.J. This case is, in terms of the law, unremarkable. However, in terms of the call for the radical reform of family justice systems most recently enunciated by the final report of the national Action Committee on Access to Justice, A Roadmap for Change (PDF), and by the final report of the Canadian Bar Association's access to justice committee, Equal Justice: Balancing the Scales (PDF), it is a clarion call for change.

The tale of C.A.J. is a tragicomedy involving two adults who married in 2000 and separated in 2009. The wife brought two children into the marriage, and the parties had another of their own. Neither party brought much by way of property into the relationship, and at the end of the day the only significant asset worth dividing was the family home, which had equity of about $160,000 at trial. Both parties worked during the marriage, the wife returning to the work force following the birth of their daughter, and both were working at the time of trial.

The litigation, which appears to have been started by the wife in 2010, led to a trial at which the parties represented themselves. The trial spanned a scant twelve days — almost short by today's extraordinary and egregious standards — but took more than two years to complete. Justice Bernard observed that the two years taken to complete the trial was "principally due to inaccurate time estimates, voluminous evidence, rescheduling difficulties, and the parties' unfamiliarity with the trial process and the rules of evidence."

C.A.J. bears many of the hallmarks of high-conflict family law cases:

• each party alleged the other was an unfit primary caregiver
• the wife accused the husband of family violence, harassment, stalking and threatening, and had made seventeen complaints to the police to that effect in the years following separation
• the wife accused the husband of having a sexual interest in their eight year old daughter, which she also brought to the attention of the police
• the husband accused the wife of alienating the children from him and the two step-children from their father
• the husband accused the wife of being an anger addict with borderline personality disorder who was prepared to lie to get whatever she wanted
• the wife's claims were on the extreme end of the scale — she sought sole custody of the daughter, retroactive and prospective child support, retroactive and prospective spousal support, a dramatic reapportioning of the family assets (70/30) and a restraining order against the husband
• the husband's claims were less extreme — he also sought sole custody of the daughter and the removal of the wife as a guardian of the child  — but was prepared to a modest reapportionment (55/45) in favour of the wife
• both parties were self-represented throughout a long trial
• the trial which required the evidence of at least twelve witnesses, including neighbours, parents, friends and tenants, and the wife decided to call the two children she brought into the marriage to give evidence

It is easy to imagine how the inflammatory allegations made by each party, the wife in particular, would have entrenched each party in their positions, made compromise impossible and made trial inevitable.

C.A.J. also bears the hallmarks common to litigation conducted by parties without counsel, many of which were remarked upon by Madam Justice Gray in her 2013 study, Filling in the Blanks: Summary of a Study Regarding the Law of Evidence and Self-Represented Family and Civil Litigants in the BC Supreme Court. Justice Gray, in her survey of Supreme Court judges, reported that problems with evidence was the single most important factoring contributing to lengthened trials involving self-represented litigants. Other problems included:

• poor organization
• inclusion of irrelevant evidence
• omission of evidence on an important issue
• providing argument instead of evidence
• including too much detail in relevant evidence

I expect that these figured prominently in Justice Bernard's concerns about the length of trial.

I in no way mean to cast aspersions on C.A.J. or N.J. for their conduct of the trial, the fact of their conflict and the vituperative nature of their allegations against each other, or for their unfamiliarity with the rules of evidence and court processes. Their trial, however, is starkly illustrative of a number of problematic features of the traditional justice system. 

Our court system, which perhaps reached the acme of its efficiency in the 1800s, is predicated on conflict and an me-versus-you mentality in which there are winners and losers. This works quite well for people suing about trespass to property, injuries sustained in a motor vehicle accident or a worker's unpaid bills, where the plaintiffs fight to prove fault and the severity of the injuries sustained and the defendants work to prove their blamelessness and the inconsequential nature of the plaintiffs' injuries, if any were sustained at all. 

It doesn't work quite so well in family matters, particularly given that fault has been expunged from our system since the 1985 Divorce Act. 

In family law, the goal is to address the future of the separated family, not the consequences of something that happened in the past. In family law, trial does not provide an end-point, only a framework that lasts until circumstances change and the order needs to be varied. In family law, there is no certainty as to result; every issue except for the divorce will be resolved considering the specific circumstances of the particular family before the court. In family law, there is no insurer or deep-pocketed corporation which pays the costs of lawyers' fees and court costs, the parties cover these expenses from the family property remaining to them. In family law, the result of trial is not predicated on findings of fault and the assignment of blame, but the financial realities of the parties and the best interests of their children. Perhaps most importantly, in family law, the relationships between those involved are emotional, not business-like, based on kinship ties and continue indefinitely after trial.

Litigation is not how disputes between family members should be resolved. There are no winners and losers in family law; there is a family unit which continues long after the parties' separation, albeit restructured to address the economic and housing consequences of family breakdown. An adversarial process based on examination and cross-examination is not how we should be dealing with these issues. Indeed, the notion of one spouse cross-examining the other on the stand at trial has always struck me as the very height of perversity.

Making things worse, our court system is based on the parties driving the process. It's up to the plaintiff to bring his or complaints before the court, and up to the defendant to defend against them. There is no gatekeeper who evaluates the merits and likelihood of success of a claim, and the traditional job of the judge is to passively receive the evidence the parties decide to present in the manner they decide to present it, without criticism, interference or limitation.

Three things result from this. Firstly, anyone can sue anyone for anything, regardless of how meretricious the complaint is. Yes, there is a mechanism for turfing ill-considered lawsuits, but first the defendant must spend the money to file a defence to avoid default and then foot the bill for an application to have the suit thrown out, and the time and cost spent in that exercise may be unrecoverable. Second, a party can present almost any evidence he or she wants at trial, without regard to its quality, relevance or prurience. Many judges attempt to control this at trial, but judges have little control over the venom a party chooses to express in an affidavit. Lastly, the court doesn't enforce or monitor the success of the orders it makes. It is up to the parties to an order to apply to enforce the order when it is breached, and incur all of those costs of the process, with no certainty that the order will be enforced or that the costs will be repaid by the other party.

Finally, the court system is based on often inscrutable rules and frequently counterintuitive evidentiary principles. The rules of the Supreme Court, which were re-written and simplified in 2010, require 162 pages to reproduce in Carswell's British Columbia Annual Practice, and contain about 100 rules in total, compared to a more modest 70 or so in the unsimplified version. The rule about evidence and procedure at trial in the new rules, Rule 14-7, is hardly a model of efficiency with a whopping 77 individual subrules. With the greatest of respect to the drafters of the new rules, they are not simpler and do not enhance the accessibility of the courts or the trial process.

The rules of evidence used at trial are complex and are often not at all what people would expect. For example, hearsay, repeating in your own evidence what someone else told you or said in a letter, is rarely permitted, requiring the original speaker or writer to be summoned to give evidence. The best evidence rule, which requires the original document, photograph, recording or object to be used as evidence, is frankly nonsensical in the age of email and Facebook. The rule in Browne v Dunn, which has to do with putting your version of events to the other side rather than saving it for your own evidence, is reasonably counterintuitive for someone new to trials, often requiring witnesses who have testified to be called back to court to give new evidence. I could go on. It is a measure of the complexity of the rules of evidence that the 2009 edition of Sopinka's The Law of Evidence in Canada, the primary text on evidence, retails for $390 and runs to more than 1,400 pages.

In any event, it is perhaps not surprising that Justice Gray anticipated that the law of evidence might thwart the administration of justice if the rules:

• encouraged litigants to abandon a claim because of the burden of complying with the law of evidence
• increased the time in court and the time passing between the end of trial and judgment
• increased the time and expense parties are put to in responding to improper evidence
• resulted in the making of incorrect judgments because of the inadequacy of the evidence provided

Surely to god we can do better than this.

It is a wonder that, if one thinks of the term "family justice system" as including collaborative dispute resolution processes, mediation, mediation-arbitration hybrid processes and parenting coordination, we as a society choose to direct almost all of our funding of the justice system toward the most expensive, most complex and most inaccessible part of the system. It must stand to reason — meaning that it can't only be me who thinks this — that if we decided to fund collaborative processes, meditation and the other non-adversarial processes, we might slash the number of family law matters proceeding to trial and instead see the majority of family law disputes being resolved in a more durable, less damaging way. It is the height of absurdity that we steer so much money into a system that provides the grotesque process endured by C.A.R. and N.J. rather than into cheaper, faster alternatives.

My thanks to the marvellous Morag McLeod for bringing this unfortunate case to my attention, and my apology for the polemic.

CBA Releases Final Equal Justice Report

The Canadian Bar Association has today released the final report of its Access to Justice Committee, Reaching Equal Justice: An Invitation to Envision and Act (PDF). This report follows the summary report released in August 2013, discussed in my post "CBA Releases Important Report on Improving Access to Justice". The final report is the culmination of the CBA's Equal Justice Initiative, launched in 2012.

Part I of Reaching Equal Justice surveys the nature of the problem and makes the argument about why it's necessary to change the justice system at all. Parts II and III discuss the means by which the justice system might be improved, and how those strategies might be implemented. An executive summary (PDF) is published as a separate document and summaries the three strategies as:

1. Facilitating everyday justice emphasizes looking upstream from the court system for ways to prevent and alleviate problems. For example:

a. Improving legal capability by teaching law as a life skill in public education, for people in transitional phases, in workplaces and through other avenues. 

b. Using legal health checks to build resilience and pre-empt legal problems. 

c. Integrating technological solutions to increase efficiency and accessibility of current processes.

2. Transforming formal justice aims to reform and re-centre courts as the central service responsible for adjudicating people’s problems. For example:

a. Cultivating dispute resolution and effective triage and referral — making it easier for people to navigate the system and get the help they need at the earliest opportunity. 

b. Re-centring courts to be open to user feedback and dedicated to innovation, learning, and integration of evidence-based best practices.

3. Reinventing the delivery of legal services aims for the elimination of assistance gaps and to ensure seamless and meaningful access to justice in every case.

a. Increased collaboration between legal service providers and public legal education and information providers. 

b. More support for people-centred law practices. 

c. More people-centred law practices working with integrated teams of service providers (legal, paralegal and social) to facilitate affordable and holistic delivery of services. 

d. More middle-income Canadians to be covered by legal expense insurance. 

e. Federal commitment to increase funding for legal aid services. 

f. That all lawyers provide pro bono services at some point in their careers, understanding that people do not rely on volunteer services to meet their essential legal needs. 

g. Greater emphasis on access to justice in law schools, including student legal clinics offering representation to low-income persons.

The mechanisms by which these strategies might be implemented are summarized as:

1. Building public engagement and participation requires a convincing answer to the question, “why should I care about equal justice?” The issue will not become a political priority if it is not a strong priority for the Canadian public. 

2. Building collaboration and leadership means establishing effective collaborative structures across national, provincial, territorial, and local levels, including the appointment of access to justice commissioners. 

3. Building capacity for justice innovation involves four main targets:

a. Improved collection and transparency of access to justice metrics. 

b. Development of a national research strategy to advance access to justice research and scholarship. 

c. Increased federal government engagement in ensuring an equal and inclusive justice system, including increased funding for legal aid. 

d. Deeper commitments by the CBA to taking a leadership role in access to justice reform.

Reaching Equal Justice is a call to action for both the public and everyone involved in the federal, provincial and territorial justice systems, and stands beside the final report (PDF) of the national Action Committee on Access to Justice as one of the most important public interest discussions of the justice system in recent memory.

On a personal note, I was very pleased to see the wikibook JP Boyd on Family Law, published and hosted by Courthouse Libraries BC, listed as an "emerging practice" in the delivery of public legal education and information. Thanks for the shout-out.

National Action Committee Releases Final Report

Yesterday, the national Action Committee on Access to Justice in Civil and Family Matters released its final report, "Access to Civil and Family Justice: A Roadmap for Change."

The Action Committee was convened at the request of Canada's Chief Justice, Beverley McLachlin, in 2008 to consider how the problem of declining access to justice might be addressed. Justice Thomas Cromwell, also of the Supreme Court of Canada, described the purpose of the Action Committee in these terms:

"The Action Committee…sees itself as a broadly representative group of leaders in the field of civil and family justice which can develop consensus about priorities, encourage organizations and groups to take the lead with respect to them and provide ongoing consultation, coordination and advice."

Four working groups were struck, the Court Processes Simplification Working Group, the Report of the Access to Legal Services Working Group, the Prevention, Triage and Referral Working Group and the Family Justice Working Group, each composed of leading judges, lawyers, academics and government representatives from across Canada. These groups released their final reports in 2012 and 2013; they are available on the website of the Canadian Forum on Civil Justice. All worth are reading, especially, in my view, the report of the Family Justice group, "Meaningful Change for Family Justice: Beyond Wise Words."

The Action Committee's final report synthesizes the lessons and recommendations of the four working groups, but, as is the way with all committees and working groups, leaves these things for implementation by government and justice system stakeholders. These are the somewhat sobering words of the Chief Justice in her foreword to the final report:

"Under the leadership of the Honourable Thomas A. Cromwell and each working group’s chair, the working groups have produced reports that outline the concrete challenges and provide a rational, coherent and imaginative vision for meeting those challenges. They focus not only on good ideas, but on concrete actions to change the status quo. The Action Committee’s final report bridges the work of the four working groups and identifies a national roadmap for improving the ability of every Canadian to access the justice system.  

"Our task is far from complete. The next step is implementation – to put the Action Committee’s vision into action. But it is not amiss to celebrate what we have achieved thus far: a plan for practical and achievable actions that will improve access to family and civil justice across Canada. ..."

Or, as the Action Committee itself observed:

"The report does not set out to provide detailed guidance on how to improve all aspects of the civil and family justice system across Canada’s ten provinces and three territories. That needs to come largely from the ground up, through strong mechanisms and institutions developed locally. Local service providers, justice system stakeholders and individual champions must be the change makers. ... 

"Access to justice is at a critical stage in Canada. What is needed is major, sustained and collaborative system-wide change – in the form of cultural and institutional innovation, research and funding-based reform."

I won't try to summarize the report, although at 24 pages of primary content it is a model of brevity in a legal landscape inclined to the prolix. You really should read the report yourself. Here, however, are the Action Committee's "nine-point access to justice roadmap designed to bridge the implementation gap between ideas and action" under the three main areas it sees as needing reform:

A. Innovation Goals 

1. Refocus the justice system to reflect and address everyday legal problems 

2. Make essential legal services available to everyone 

3. Make courts and tribunals fully accessible multi-service centres for public dispute resolution 

4. Make coordinated and appropriate multidisciplinary family services easily accessible 

B. Institutional and Structural Goals 

5. Create local and national access to justice implementation mechanisms 

6. Promote a sustainable, accessible and integrated justice agenda through legal education 

7. Enhance the innovation capacity of the civil and family justice system  

C. Research and Funding Goals 

8. Support access to justice research to promote evidence-based policy making 

9. Promote coherent, integrated and sustained funding strategies

Much thanks are due to Professor Trevor Farrow, Chair of the Canadian Forum on Civil Justice, who I understand is the uncredited author of the final report.

CanLII Launches Awesome New Interface

CanLII, short for the Canadian Legal Information Institute and a project of the Federation of Law Societies of Canada, has just relaunched its website with a new and significantly improved user interface:

You can enter a Boolean or keyword search term from the main page; clicking on a particular province or territory will narrow your search accordingly. Clicking on the plus sign to the left of the search box expands the box to allow a more focussed search for a case or legislative text:

Your results will appear in a new page, with document hits sorted into four tabbed groups (everything, cases, legislation and commentaries), and a snapshot of the portion of the document in which the search term appears:

I've played around a bit with the new website and it's intuitive and really quite easy to use. CanLII has done a great job here, and, best of all, the website continues to be run free of charge. Thank you, Federation of Law Societies of Canada!

Update: 19 September 2013

Courthouse Libraries BC has published a blog entry with some genuinely useful information about using the new CanLII interface.

Law Commission of Ontario Releases Report on Access to Justice

Today the Law Commission of Ontario has released an important new report, "Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity." The report provides an important assessment of the strengths and weaknesses of the family law justice system in Ontario and the barriers faced by those who must proceed in court without the benefit of counsel, and makes a number of recommendations as to how the system could be reformed, including an multidisciplinary, holistic approach to family law problems.

Here's the summary from the Commission's press release on the report.

The family law system has been the subject of much comment in recent years and many reports recommending changes to the system. Since 2010, there have been reforms in relation to procedures to address domestic violence against women, provision of information, methods of resolving disputes other than the courts, changes in the courts and other efforts to improve the system. Yet persons facing family disputes still find the system complex and difficult to navigate. The LCO’s Final Report focuses on the initial stages of the system, notably the provision of information, ways of providing initial advice and the interrelationship of legal problems with other kinds of problems.  

The Report emphasizes the need for the system to respond to the evolving pluralist nature of Ontario’s population, and addresses how factors such as literacy levels, cognitive disabilities and, geographic location, among other characteristics, affect how easily people can access and use information, the affordability of legal representation and the degree to which legal problems are affected by other kinds of problems. It recommends the creation or enhancement of multidisciplinary, multifunctional centres or networks that link with “trusted intermediaries” such as cultural centres. “Tinkering with the family law system is not sufficient,” says LCO Board Chair Bruce Elman, “There needs to be comprehensive reform if it is to be made more accessible and effective for those who need it”.

This report adds to the growing number of reports calling for fundamental reform of the family law justice system and is well worth a read.

Court of Appeal Releases Decision on Hearing Day Fees

Readers may recall the decision in Vilardell v. Dunham, released in the summer of 2012 and discussed in my post "Court Services Suspends Hearing Day Fees in Supreme Court." In this family law case, which was heard with submissions from the Canadian Bar Association British Columbia and Trial Lawyers Association of British Columbia appearing as intervenors, the trial judge decided that the pricey hearing day fees charged by the Supreme Court were unconstitutional because:

• access to justice is a fundamental constitutional right which may not be abrogated by Parliament or the provincial Legislature;
• the constitutional obligation of the provinces to administer justice does not not include the power to hinder the court's functioning; and,
• the hearing day fees imposed by the province are a barrier to access to justice.

The result was appealed by the Attorney General, and the Court of Appeal has just released its decision in the matter.

In a nutshell, the Court of Appeal has determined that government has a legitimate interest in imposing hearing day fees and other court fees in order to recover some of the expense incurred in maintaining the courts and the apparatus necessary to sustain them. Such fees would be an unconstitutional barrier to justice, however, were it not for the indigency provisions of the Supreme Court Family Rules which allow litigants to apply for an exemption to some of all of these fees. Rule 20-5(1) provides that:

If the court, on application made ... before or after the start of a family law case, finds that a person receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act or is otherwise impoverished, the court may order that no fee is payable by the person to the government ...

However, this isn't quite good enough. The court observed that:

"In this case, the constitutional inconsistency consists of an under-inclusive exemption from hearing fees, which restricts it to people who would be defined as impoverished. ... An enlarged interpretation of the indigency provision is necessary to uphold the constitutionality of hearing fees and remove a barrier to court access."

In the end, the court held that the with the wording of Rule 20-5(1) tweaked just a bit to include mere need as well as impoverishment, the government may continue to charge hearing day fees:

"The enlarged scope of the exemption in Rule 20-5, then, should be read as saying 'impoverished or in need'. The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees. Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption."

Thanks to my colleague Agnes Huang for letting me know that this judgment has been released.

New Provincial Court Report: Fewer judges now than in 2010

The Provincial Court of British Columbia has quietly published an updated document (PDF) detailing both new judicial appointments and judges lost to the court between 30 September 2010 and 31 October 2012.

Boiling it all down, the numbers show that the court has a judicial complement of 123.80 full-time equivalent judges now, three judges less than the complement of 126.30 the court had this time in 2010, and twenty judges below the 143.65 judges the court had in 2005.

In 2010, the court published a powerful a report detailing the effects of the short judicial complement on the administration of justice, Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources (PDF), which ought to be mandatory reading for anyone with an interest in Provincial Court matters. The conclusion reached by the court is short and to the point:

"The Provincial Court of British Columbia is the only provincial court in Canada with fewer judges today than in 2005. In fact there are 17 fewer judges, and unless further appointments are made, this will result  in a loss of over 900 trial days in 2010 and over 1600 trial days in 2011.  

"To be effective in supporting the rule of law, and to fulfill its legal obligations to the public, the Court must process cases within a reasonable time. For most cases the Court is legally obligated to provide timely access and, as with other courts across Canada, seeks to manage its caseload according to accepted standards which reflect the relative public interest and priority of the different case types. 

"Given the reduction in the judicial complement the Court is unable to 'keep pace' with the new cases being presented to it. The current inventory of uncompleted cases is growing markedly, as is the delay for all case types other than youth court prosecutions. Increasingly the Court is failing to meet its legal obligation to provide timely access to justice."

The court has now released an update to the 2010 report (PDF), current to 30 September 2012.

The Self-Represented Litigant's Bill of Rights ...and Responsibilities

Today I've launched a new page in this blog, The Self-Represented Litigant's Bill of Rights ...and Responsibilities, to which you'll find a link in the list at the upper right-hand portion of this page with a much briefer title, "The Litigant's Bill of Rights."

The purpose of the page is to describe the expectations self-represented persons ought to have of the people they meet on the way through a court proceeding: the court staff who assist in court processes, the lawyers who may act for the other parties, and the judges and masters who hear case conferences, applications and trials. The page also describes self-represented persons' obligations to learn about court processes and procedures and the law that applies to the proceeding they are involved in, and to treat court staff and judges with courtesy and respect.

This page is a bit of a work in progress. It represents only my views and opinions, and I fully expect that others will take a different perspective on things; in all likelihood I have put emphasis in the wrong place and overlooked things that should be discussed. I welcome your comments, questions and criticism.

This page is a contribution to the larger discussion I think we need to have about the functioning of the justice system in a tough economic climate where lawyers are becoming increasingly unaffordable and both the courts and legal aid programs have become distressingly understaffed and underfunded. As such, the page may be reused, republished and redistributed without restriction.

Access Pro Bono Drop-In Legal Advice Events

Access Pro Bono's annual open-air legal advice event is running today in Vancouver from 10:00am to 5:00pm at Victory Square Park, at 200 West Hastings Street. The free event is intended to facilitate access to justice for low- and modest-income people, including the homeless, on all legal issues and to raise money to support the organization's programs through pledges raised by the volunteer lawyers.

The even repeats in New Westminster from 10:00am to 2:00pm on 11 September 2012 at Hyack Square, in Kelowna from 10:00am to 2:00pm on 14 September 2012 in the City Park, and in Victoria from 10:00am to 2:00pm on 18 September 2012 at Centennial Square.

Access Pro Bono raised over $50,000 for pro bono programming in British Columbia last year, and hopes to raise $60,000 this year. For more information visit the event website.

Lawyers' Magazine Publishes Rates Survey

Canadian Lawyer has published its 2012 survey of lawyers' fees (PDF), which includes reports on the rates charged for common family law activities, broken down by region and size of firm.

Court Services Suspends Hearing Day Fees in Supreme Court

The Law Society advises that the Court Services Branch of the Ministry of Justice — the benighted office responsible for running courts throughout the province — has suspended the processing of payments or issuance of invoices for hearing fees under the Supreme Court Civil Rules and Family Rules.

Hearing days fees are fees charged by the Supreme Court for trials. Under Appendix C, Schedule 1 of the Family Rules, hearing day fees are payable on a tariff which increases with the length of trial:

• nothing for each of the first 3 days;
• $500 per day for the 4th to the 10th days; and,
• $800 per day for 11th day and onwards.

The catch, however, is that the person responsible to pay these fees isn't the party who wins or loses or the person who is awarded their costs, it's the party who sets the action for trial! This can lead to some dickering and brinksmanship about who will wind up setting an action for trial.

The Branch's decision to stop collecting these fees arises out of the court's recent decision in Vilardell v. Dunham, In this case, the claimant had asked the court for an order that she be exempted from paying the hearing fees and, once the trial was done, the court heard her argument on the issue, with submissions by the Canadian Bar Association British Columbia and Trial Lawyers Association of British Columbia as intervenors. At the application, the issue was not whether the claimant could afford the fees (she could, she was a veterinary surgeon), but whether the rules' provisions for the fees were constitutional. This is the relief the claimant sought:

"(b)a declaration that the imposition of fees for the hearing of a trial infringes a right of access to justice and thereby offends the rule of law and is therefore inconsistent with the Canadian Constitution;
"(c) a declaration that the imposition of fees for the hearing of a trial infringes s. 96 of the Constitution Act, 1867 and is therefore unconstitutional;
"(d) a declaration that the imposition of fees for the hearing of a trial infringes s. 7 of the Charter and is not justified under s. 1 of the Charter;
"(e) a declaration that the imposition of fees for the hearing of a trial infringes s. 28 of the Charter by denying women the equal protection of s. 7 which denial is not justified under s. 1 of the Charter;"

I won't recite the court's analysis; it is masterful and deserves a thorough review rather than the hackneyed summary I could provide. At the end of the day, the court held that:

• access to justice is a fundamental constitutional right which may not be abrogated by Parliament or the provincial Legislature;
• the constitutional obligation of the provinces to administer justice does not not include the power to hinder the court's functioning;
• the hearing day fees imposed by the province are a barrier to access to justice; and,
• hearing day fees are unconstitutional.

According to the Law Society, "the Branch has been advised that the ruling is being appealed by government and a decision is pending regarding whether or not to file a motion to apply to the court for an order staying further proceedings." Stay tuned.

As I've said, the judgment is masterful. Here is my favourite passage, from paragraph 425:

"The court cannot fulfill its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents."