Provincial Court Announces Scheduling Reform Project

The Provincial Court has announced a project to overhaul how court time is scheduled. The aptly named Provincial Court Scheduling Project has just release the first issue of a newsletter (PDF) intended to keep court users and other stakeholders up to date on the status of the project and address common questions and concerns. According to the newsletter,

"The Provincial Court Scheduling Project will restructure court scheduling. The new model will provide more timely access to justice by reducing waiting times to trial and returning case management responsibilities to counsel. The latter will promote discussion between parties and foster earlier case resolution.  

"Currently, the PCS Project Team is developing the details of the new scheduling model and designing new software, the Provincial Court Scheduling System (PCSS), to support the new model. ..."

Implementation is set to begin in later 2013 with the province-wide roll out continuing through 2014. Questions and comments can be directed to the PCSP Project Team at pcss@provincialcourt.bc.ca.

Out With the Old, In With the New: Changes to plan for in 2013

The last few years have welcomed a range of important reforms affecting the practice of family law in British Columbia, including the new Supreme Court Family Rules, recalculated child support tables, the extension of the Notice to Mediate Regulation to family law matters and the expansion of the family law justice centre court model beyond Nanaimo. 2013 is going to be no different. In fact, in 2013 we are going to undergo reforms of a scope and magnitude not seen in the last thirty years. If the changes implemented in 2010, 2011 and 2012 were not your cup of tea, you are going to hate 2013. Read on.

The Family Law Act

The coming-into-force of the new Family Law Act will be the major event of 2013, no doubt about it. The new act will replace the Family Relations Act, which has been at the core of the law on domestic relations in British Columbia since 1972. 

Here are the highlights of the changes to expect on 18 March 2013:

• Family violence: Under the new act, family violence will be a factor which must be considered when the court is making decisions about children. The court will also be able to make protection orders to protect children and adults who are at risk of family violence.
• Parentage: We will have a complete code for determining a child's parentage, including when a child is conceived as a result of assisted reproduction. When assisted reproduction is used, a child may have more than two legal parents.
• Children's best interests: The list of factors that parents and the court must consider when making decisions about children will grow significantly, and will include family violence and a presumption that children's views should heard.
• Guardianship: The new act will give us a new definition of guardianship which takes us back in time to the old common law meaning of the term. Under the new act, subject to some exceptions, parents will usually be a child's guardians during their relationship and after separation. A guardian will be able to appoint a person to act as guardian in the event of his or her illness or death.
• Parental responsibilities: The decisions a child's guardians must make about raising the child will be called parental responsibilities, and will cover everything from where the child goes to school and how the child's health care is managed to signing permission slips for field trips. Only guardians will have parental responsibilities.
• Parenting time and contact: The time a guardian has with a child will be called parenting time. The time that someone who isn't a guardian has with a child will be called contact.
• Child support: Under the new act, the child support duties of a stepparent will be secondary to those of a parent, and the amount that the stepparent must pay will be determined considering the length of time the child and stepparent lived together and the child's standard of living during that time. A person paying support may also be required to carry life insurance to secure his or her obligation.
• Spousal support: People who have lived together for less than two years and have had a child together will be eligible for spousal support. Orders and agreements for spousal support may be reviewable. A person paying support may also be required to carry life insurance to secure his or her obligation.
• Property and debt: The new act will let people keep the property they owned going into to the relationship but require them to share any property or debt acquired after the date of marriage or the date they began to live together, whichever was first, plus the increase in value of any property brought into the relationship. People will also be able to keep other kinds of property they acquire during the relationship, such as inheritances, court awards and insurance payments. The property and debt provisions of the new act will apply to married and unmarried spouses.

Some amendments are likely planned to fix the very small number of problems in the new legislation that were overlooked in the drafting process. However, the next session of the Legislative Assembly, which will probably not begin until February or so, is going to be somewhat preoccupied with matters leading to the mandatory provincial election in May. As a result, it is very unlikely that the Family Law Act will be amended until the fall sitting.

You can read more about the Family Law Act in my Family Law Act Information & Resources page or in the helpful website on the new act put together by the Ministry of Justice.

The Regulations to the Family Law Act

Two main regulations will come into effect with the Family Law Act, the Family Law Act Regulation and the Family Law Act Pension Regulation. There are a few dozen other regulations that will come into effect at the same time, but these are largely housekeeping regulations that change other regulations to refer to the Family Law Act rather than the Family Relations Act.

The Family Law Act Pension Regulation deals with, well, pensions. No surprises there.

The Family Law Act Regulation covers a number of important subjects including:

• the roles and responsibilities of Family Justice Counsellors
• the training and experience people will have to have to work as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators under the new act
• adopting the federal Child Support Guidelines as the Guidelines for the Family Law Act and translating the new act for the purposes of those Guidelines

The Ministry of Justice has written a helpful guide to the Family Law Act Regulation (PDF). You can find links to the new regulations in PDF format in my post "Regulations to Family Law Act Published."

The Family Relations Act

The Family Relations Act, and the regulations made under the Family Relations Act, will all be repealed when the Family Law Act comes into force on 18 March 2013. The repealed regulations include the Child Support Guidelines Regulation, the Division of Pensions Regulation and the Family Relations Act Rules and Regulations Regulation.

The Divorce Act

I am not aware of any changes planned for the Divorce Act. However, it's worth saying that among the things that will be staying the same under the Divorce Act are:

• Custody: The right to physical possession of a child and certain rights, almost like those of a guardian, to make decisions regarding the care and upbringing of the child.
• Access: The time a person has with a child under an order or agreement.
• Child support: The obligation of a spouse or stepparent to contribute to the costs of raising a child, as determined under the Child Support Guidelines.
• Spousal support: The obligation of a spouse to contribute to the living expenses of the other spouse, where that spouse has demonstrated an entitlement to receive it.

As a result, when the Family Law Act comes into force, married spouses will be subject to two slightly different rules for determining child support and spousal support, and to two very different schemes for the care and control of children.

The Child Support Guidelines

I am not aware of any changes planned for the Child Support Guidelines. The Guidelines tables were last amended on 31 December 2011, which means that the next amendment is unlikely to occur prior to 2016.

The Rules of Court

Both the Supreme Court Family Rules and the Provincial Court (Family) Rules will be amended on 18 March 2013 to accommodate the Family Law Act. Both sets of rules will be updated to:

• implement the new terminology used by the Family Law Act (for example, parental responsibilities, parenting time and parentage tests)
• address the new concepts introduced in the act (for example, parenting coordination, conduct orders and protection orders)
• address new processes established by the act (for example, the enforcement of orders and applications to enforce or set aside the determinations of parenting coordinators)
• delete reference to concepts not carried forward by the act (for example, restraining orders, parental support and declarations of irreconcilability)

The changes to the Provincial Court rules were somewhat more extensive given their antiquity, however the Minister of Justice has promised a complete overhaul of the rules for sometime in 2013 or 2014.

I expect that further updates to both sets of rules will be announced in the next few months to address the requirements of s. 51(2) of the new act concerning applications to be appointed as a child's guardian:

"An applicant under subsection (1) (a) of this section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in section 37 [best interests of child] of this Act."

An overview of the changes can be found at the Ministry's website on the new legislation. I have also discussed the updates to the rules in my post "Family Law Act: Changes to Rules of Court."

The Limitation Act

A brand new Limitation Act will come into force on 1 June 2013. Among other things, the new act exempts arrears of child support and spousal support from any limitation period, which means that once arrears have accumulated under ss. 148 or 163 of the Family Law Act, or the equivalent sections of the Family Relations Act, they can always be enforced.

I have briefly discussed the new new act in my post "New Legislation Will End Limitation Period for Claims on Arrears of Support." The old Limitation Act can be found on the excellent website of the Queen's Printer.

Family Day

Thanks to Premier Clark's ambitious families first agenda, our province's first Family Day will be celebrated with a day off on the second Monday of February; this year, on 11 February 2013. Huzzah!

New Practice Standards for Lawyers

On 7 September 2012, the Law Society adopted new practice standards (PDF) for lawyers wishing to practice as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators when the new Family Law Act comes into force. The new standards are onerous but are, in my view, appropriately high.

I have discussed the new practice standards in my post "Family Law Act: Law Society Task Force Releases Practice Requirements, Government Announces No Fall Sitting."

People who are not lawyers and wish to practice as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators must meet the training requirements set out in the Family Law Act Regulation; lawyers who wish to practice in these areas must meet both the requirements of the regulation and the standards set by the Law Society.

New Code of Professional Conduct for Lawyers

The Law Society has implemented a new Code of Professional Conduct (PDF) to replace the old Professional Conduct Handbook, effective today. The code covers most aspects of lawyers' ethical obligations, including confidentiality, conflicts of interest and advertising, and is part of an effort to promote greater uniformity among the practice codes of the various provinces and territories.

I have discussed the new code in my post "New Code of Professional Conduct in Force in January." You can read more about the new code in the Law Society's Bencher's Bulletin newsletter.

Designated Paralegal Pilot Project

Beginning on 1 January 2013, the scope of practice allowed to paralegals under the Law Society's pilot project will expand to allow designated paralegals to appear in court.

In the Vancouver, New Westminster and Kamloops Supreme Court registries only, designated paralegals may apply for a wide variety of uncontested orders, largely concerning procedure and file management, and may make contested applications for the following orders:

• compelling the production of documents
• changing the place of an examination for discovery
• the payment of child support where the children are below the age of majority and the payor's annual income is less than $150,000

In the Caribou/Northeast District and Surrey Provincial Court registries only, designated paralegals may apply for the same sort of uncontested orders and may make contested applications for the following orders:

• compelling the production of documents
• compelling the production of financial statements and financial documents
• the payment of child support where the children are below the age of majority, the payor's annual income is less than $150,000 and the application does not involve situations of shared or split custody or a claim of undue hardship

For more information, see the paralegals page on the Law Society's website.

Provincial Sales Tax

Remember the PST? It's back on 1 April 2013. Lawyer's fees are subject to PST and GST; fees charged by lawyers acting as mediators are subject only to GST.

Happy new year.

Attorney General Appoints Nine New Provincial Court Judges

Attorney General and Minister of Justice Shirley Bond has today appointed nine new judges to the Provincial Court bench. According to the Ministry's press release, Surrey will be getting two judges and Kamloops, North Vancouver, the Northeast district, Port Coquitlam and Vancouver will each get one judge. Two judges will be assigned to work out of the Office of the Chief Judge.

The new judges, almost of whom have backgrounds in criminal law, will bring the judicial complement of the court up to 131.80 full-time equivalent judges, only 12 fewer judges than the court's complement in 2005. 

The Chief Judge, in a statement (PDF) released later today, observes that a number of vacancies are foreseeable over the course of 2013 because of judges retiring or moving to part-time status and notes that the increase in the number of Provincial Court judges resulting from the new appointments will be short lived as a result:

"I am encouraged by today's announcement regarding the appointment of nine new Provincial Court Judges. As Chief Judge, my focus is on identifying and meeting the ongoing needs of the Court, including increasing accessibility to the Court. 

"The early replacement of several Judges scheduled to retire or join the senior program in 2013 will provide some capacity to assist in reducing the case backlog."

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.

Justice Education Society Launches Online Parenting After Separation Program

On 21 March 2011 the Justice Education Society, formerly the Law Courts Education Society, launched an online version of the Parenting After Separation program, available through the Families Change website. I've taken a look at the online PAS program and it's a pretty impressive effort. Even more impressively, JES says that they're expecting to have a similar online program available in Punjabi and Cantonese or Mandarin by the end of April.

The PAS program is a mandatory part of the court process in the Abbotsford, Campbell River, Chilliwack, Courtney, Kamloops, Kelowna, Nanaimo, New Westminster, North Vancouver, Penticton, Port Coquitlam, Prince George, Richmond, Surrey, Vancouver, Vernon and Victoria registries of the provincial court. It is intended to teach parents about how children experience separation, how parents can protect children from the conflict, and how parents can make decisions which put their children's interests first. I recommend the program to all parents who are thinking of separating, not just those involved in litigation in the provincial court.

The Attorney General's website has a list of locations (PDF) where the PAS program is offered live, a brochure (PDF) for the program, and the program handbook in English, French, Chinese and Punjabi (PDF).

Update: 25 March 2011

And the news gets better yet. JES is looking for people to evaluate their online Parenting After Separation program. The first fifty people will be paid $50 for completing the online program, including the final exam, and filling out an evaluation form.

This is how it works:

1. visit www.familieschange.ca starting today,
2. click on the icon for the online Parenting After Separation program,
3. click the REGISTER button and provide your name and telephone number,
4. complete the course and take the final exam,
5. fill out the online evaluation form after the final exam, and
6. answer a few follow questions by telephone and provide a mailing address for your cheque.
   

Please address any questions to Kevin Smith at kevin.smith@justiceeducation.ca.

Access Pro Bono Launches Court Form Service

Access Pro Bono, the organization created by the merger of Pro Bono Law British Columbia and the Access Justice Society, has announced a new Paralegal Program under which paralegals supervised by a lawyer will give low-income Supreme Court litigants help drafting court documents. The program, sadly, is only for non-family law civil matters; less extensive help for family law cases can still be had from the self-help centre.

This is how the new service works:

• Each paralegal program will engage the volunteer services of two to four paralegals and one supervising lawyer
• The Law Courts Center will recruit, monitor and train the volunteer paralegals as needed and Access Pro Bono will recruit supervising lawyers as needed
• The supervising lawyer will directly supervise each client file at the Vancouver Justice Access Centre
  
• The supervising lawyer will be responsible for the legal advice and assistance provided by the paralegals
• Volunteer paralegals will each see a maximum of two clients per clinic and the program will serve a maximum of eight clients per day
  

If you are interested in this service, call 604-660-2084, or go in person to the Vancouver Justice Access Centre at 290-800 Hornby Street in Vancouver and ask to be booked into the Paralegal Program.

Child Abduction Cases and the Courts

I've spent much of the past week at a legal conference in Calgary (not the one featuring the Chief Justice, that was in Toronto). One of the sessions dealt with interprovincial and international child abduction and offered a lot of information I think might be of interest to a broader audience.

International Abduction

The website of the Hague Conference on Private International Law can be found at www.hcch.net. This is where you'll find a complete listing of the international Hague agreements on domestic relations, covering legal issues ranging from adoption to support obligations, as well as the Convention on the Civil Aspects of International Child Abduction. The Conference's child abduction case law database can be found at www.incadat.com.

Certain signatories to the convention on child abduction have offered up a member of their judiciaries to the International Hague Network of Judges, formed to support the convention by easing communication between the courts of signatory countries. The list of participating judges as of December 2010 can be found here (PDF); the Canadian judges are:

• Civil Law: L'hon. Juge Chamberland, la Cour d'appel du Québec
  
• Common Law: Hon. Madam Justice Diamond, Manitoba Court of Queen's Bench
  

The Central Authority for the convention in British Columbia is Ms. Penelope Lipsack of the Attorney General's office.

Interprovincial Abduction

The primary federal legislation on custody and access rights is the Divorce Act, RSC 1985, c. 3 (2nd Supp.). Although the Divorce Act contains no enforcement provisions, s. 20 provides that Divorce Act orders have effect throughout Canada and may be registered in the court of any province and be enforced as an order of that court. Another federal law, the Family Orders and Agreements Enforcement Act, RSC 1985, c. 4 (2nd Supp.) provides for the release of government information about a person for the purposes of enforcing orders about custody and access.

The current provincial and territorial legislation on the enforcement of custody and access rights is:

• Alberta: Extra-Provincial Enforcement of Custody Orders Act, RSA 1980, c. E-17, and Family Law Act, RSA 2003, c. F-4.5
• British Columbia: Family Relations Act, RSBC 1996, c. 128
• Manitoba: Child Custody Enforcement Act, CCSM c. C360
• New Brunswick: Family Services Act, SNB 1980, c. F-2.2
• Newfoundland & Labrador: Children's Law Act, RSNL c. C-13
• Northwest Territories: Children's Law Act, RSNWT 1997, c. 14 (PDF)
  
• Nova Scotia: Family Orders Information Release Act, RSNS 1989, c. 161, and Reciprocal Enforcement of Custody Orders Act, RSNS 1989, c. 387
• Nunavut: Children's Law Act, RSN 1990, c. C-13 (PDF)
  
• Ontario: Children's Law Reform Act, RSO 1990, c. C.12
• PEI: Custody Jurisdiction and Enforcement Act, RSPEI 1988, c. C-33 (PDF)
  
• Quebec: Code civil du Québec, SQ 1991, c. 64
• Saskatchewan: Children's Law Act, SS c. C-8.2
• Yukon: Children's Law Act, RSY 2002, c. 31 (PDF)
  

(Interestingly, the Nova Scotia enforcement legislation only applies in respect of those provinces which have reciprocal agreements with Nova Scotia, and not all do.)

The Judicial Response

The Canadian Judicial Council has established a network of superior court contact judges to address interprovincial and international abduction cases and facilitate communication between the courts of different provinces and between Canadian courts and foreign courts. The current members of the Canadian Network of Contact Judges for Interjurisdictional Cases of Child Protection are:

• Chair: Hon. Madam Justice Diamond, Manitoba Court of Queen's Bench
• Alberta: Hon. Madam Justice Moen, Court of Queen's Bench
  
• British Columbia: Hon. Mr. Justice Butler, Supreme Court
• Manitoba: Hon. Madam Justice MacPhail, Court of Queen's Bench
• New Brunswick: L'hon. Juge Robichaud, la Cour du Banc de la Reine
• Newfoundland & Labrador: Hon. Mr. Justice Cook, Supreme Court Trial Division
• Northwest Territories: Hon. Madam Justice Schuler, Supreme Court
• Nova Scotia: Hon. Mr. Justice Dellapinna, Supreme Court Family Division
• Nunavut: Hon. Mr. Justice Johnson, Court of Justice
• Ontario: Hon. Mr. Justice Harper, Superior Court of Justice
• PEI: Chief Justice Matheson, Supreme Court
• Quebec: L'hon. Juge Gaudreau, la Cour supérieure
• Saskatchewan: Hon. Madam Justice Ryan-Froslie, Court of Queen's Bench
• Yukon: Hon. Mr. Justice Gower, Supreme Court

A similar network has been established between the provincial courts. The current contact judges are:

• Alberta: Hon. Judge O'Gorman, Provincial Court
  
• British Columbia: Hon. Judge Wingham, Provincial Court
• Manitoba: Associate Chief Judge Thompson, Provincial Court
  
• Newfoundland & Labrador: Hon. Judge Howe, Provincial Family Court
  
• Northwest Territories: Hon. Judge Gorin, Territorial Court
  
• Nova Scotia: Chief Judge Comeau, Provincial Family Court
  
• Ontario, Toronto: Hon. Justices Weagant and Scully, Ontario Court of Justice
  
• Ontario, Central West: Hon. Justice Maresca, Ontario Court of Justice (Brampton)
  
• Ontario, West: Hon. Justice Glenn, Ontario Court of Justice (Chatham)
  
• Ontario, East: Hon. Justice Malcolm, Ontario Court of Justice (Belleville)
• Ontario, Northwest: Hon. Justice McKay, Ontario Court of Justice (Fort Frances)
• Ontario, Northeast: Hon. Justice Kukurin, Ontario Court of Justice (Sault Ste. Marie)
• Quebec: Juge en chef adjointe Gaumond, la Cour du Québec

Supreme Court Scheduling Online

Here's a very handy link to add to your bookmarks, the scheduling page of the Supreme Court of British Columbia's website: www.courts.gov.bc.ca/supreme_court/scheduling/. This page lets you see the available court dates for:

1. Judicial Case Conferences;
2. chambers applications longer than two hours ("Family Lengthy Chambers Available Dates");
3. Settlement Conferences;
4. Trial Management Conferences;
   
5. trials ranging from two to nineteen days in length; and,
6. the court's calendar of closures and holidays ("Court Calendar 2011").
   

Very handy.

Court Services Online Drops Criminal Fees

Court Services Online has dropped the fee charged to access its full criminal proceedings database. Fees are still charged to access the databases for civil and appeal proceedings, but even the limited information you can get without charge is enormously useful.

Criminal Proceedings: Full, free access to criminal and traffic court proceedings, including the date of the alleged offence, charges laid, appearance history and case disposition.

Civil Proceedings: Access to the list of current and historic civil proceedings, including small claims, family and divorce, probate, foreclosures and bankruptcies, enforcement and motor vehicle accident proceedings. Free search results show the names of all parties, the court registry, the file number and the date the action was commenced. Further access available for a fee.

Appeal Proceedings: Access to the list of current appeals. Free search results show the names of all parties, the file number and the date the appeal was commenced and the status of the appeal as active or closed. Further access available for a fee.