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.

Provincial Legislature Resumes Sitting

The Legislative Assembly resumed sitting today, commencing the 5th Session of the 39th Parliament and concluding a recess that began on 31 May 2012, nine months ago. Given the proximity of a provincial election — fixed for Tuesday 14 May 2013 — the Legislature is expected to only sit for four or five weeks.

Don't hold your breath for any amendments to the Family Law Act. Although rumour has it that the Ministry of Justice is compiling a list of potential changes, nothing is likely to be tabled in a pre-election session that will be dominated by other priorities. The soonest any amendments will be introduced will be the fall legislative session beginning in October 2013.

Amendments Amended: Rules of Court adjusted for guardianship applications

Two new Orders in Council have just been published implementing further amendments to the amendments previously released for the Supreme Court Family Rules and the Provincial Court Family Rules. A third order in council amends the recently released Family Law Act Regulation. The reason for these amendments stems from s. 51(2) of the Family Law Act which, as I am sure everyone by now recalls, requires that certain additional evidence concerning the best interests of the child be provided  when applications are made for the appointment of a person as the guardian of a child.

Provincial Court Family Rules

The PCFR are amended (PDF) to include a new Rule 18.1, "Guardianship Orders." The rule provides that an affidavit in Form 34 must be prepared for guardianship applications, to which must be attached a criminal records check, probably by way of a CPIC printout, as well as records checks from the Ministry for Children and Family Development and the Protection Order Registry. The affidavit required the applicant to disclose:

• his or her relationship to the children of whom guardianship is sought;
• any incidents of family violence affecting the children;
• any involvement in court proceedings under the Child, Family and Community Service Act, the Family Relations Act, the Family Law Act or the Divorce Act concerning children in the applicant's care; and,
• any history of criminal convictions and the existence of any current criminal charges.

 You can find a link to the original amendments to the PCFR in my post "Family Law Act: Changes to Rules of Court."

Supreme Court Family Rules

The SCFR are amended (PDF) to include a new Rule 15-2.1, "Guardianship Orders," to the same effect as the PCFR 18.1, with a new affidavit in Form F101.

 You can find a link to the original amendments to the SCFR in my post "Family Law Act: Changes to Rules of Court."

Family Law Act Regulation

The Family Law Act Regulation is amended to include a new Form 5, "Consent for Child Protection Record Check," to be used to obtain a record check from the Ministry for Children and Family Development.

You can find a link to the Family Law Act Regulation in PDF format in my post "Regulations to Family Law Act Published."

Last British Columbia Decision on Parental Support Released

The Supreme Court has just released its decision in the very last claim for parental support that will ever be heard in this province.

In Anderson v. Anderson and others, a mother sued her five adult child for parental support. The case began in 2000 with an interim order that each of the children pay their mother $10 per month. The mother lost her appeal of the interim decision, and the case lay dormant until 2008 when she filed a Notice of Intention to Proceed. Although the case was again beset by delay, it was at last heard at a summary trial in the summer of 2012.

Without getting into the nuts and bolts of the decision, the court held that none of the children had the means to pay parental support to their mother once their incomes had been applied to cover the needs of their own families, and that even if the children had the means to pay parental support, the mother was not morally entitled to support as a result of her historic treatment of the children and their present estrangement from her.

Section 90 of the Family Relations Act, the section which allowed parents to sue their adult children for support, was repealed on 24 November 2011 when the Family Law Act received royal assent. Although the essential concept of parental support has a long history in British Columbia, being first implemented in the 1920s in the economic turmoil following the end of the first World War, the present legislature seems to have considered the section to be the cause of too much domestic strife and to provide too little return for too much costs to be allowed to survive. Justly so.

CLE Family Law Act Course Coming to Victoria and Kelowna

The Continuing Legal Education Society's two-day course, "The Family Law Act: Everything You Always Wanted to Know But Were Afraid," just ran in Vancouver and is about to be repeated live in Victoria and Kelowna. The program takes an in-depth look at the three areas of the law that will be most changed by the Family Law Act — the division of property and debt, the care of children and family violence — from a practice-oriented perspective, and is taught by leading judges, lawyers and psychologists including:

• Scott Booth
• barbara findlay QC
• Lisa Holmes Wyatt (chair)
• Anna Laing
• Georgialee Lang
• Gordon Kopelow
• Dr Mary Korpach
• Morag MacLeod
• The Honourable Justice Donna Martinson
• The Honourable Judge Paul Meyers
• Colin Millar
• Mary Mouat QC
• Barbara Nelson QC
• Karen Nordlinger QC
• The Honourable Judge Margaret Rae
• Eugene Raponi QC (chair)
• The Honourable Judge Meg Shaw
• Ronald Smith QC
• Dr Alan Wade
• Master Barbara Young

The course features two keynote speakers, and wraps up with a Q&A session with two senior members of the Ministry of Justice's Civil Policy and Legislation Office who were intimately involved with the development of the new legislation. The keynote speakers are:

Jerry McHale QC, a former assistant deputy minister in the Ministry of Justice and now the Lam Chair of Law and Public Policy at the University of Victoria, who speaks about the development and implementation of the Family Law Act on day one. 

Norman Picard QC, a prominent family law lawyer with the Edmonton firm Barr Picard, who talks on day two about the family law reforms implemented in his jurisdiction and what British Columbia lawyers can learn from the Alberta experience with similar legal concepts.

In Victoria, the course runs on 7 and 8 February 2013 at the Hotel Grand Pacific; in Kelowna, the court will be held at the Delta Grand Okanagan on 21 and 22 February 2013. For more information, contact the CLE program lawyer for the course, Nadia Myerthall, at nmyerthall@cle.bc.ca.

For those of you mindful of such things, the course will take care of all of your CPD credits, including the two-hour ethics component, in a single sitting.

Integrative Law: A day with Pauline Tesler

The BC Collaborative Roster Society has announced a day-long seminar presented by Pauline Tesler with the lofty title The Next Step: How Integrative Law is Reclaiming the Healing Heart of Legal Practice at the Wosk Centre for Dialogue in Vancouver. The Roster Society's announcement says this:

"A flood of neuroscience and cognitive/behavioral psychology research studies is yielding discoveries daily that challenge core beliefs about human consciousness and rationality imbedded in our legal institutions. This growing body of evidence carries revolutionary implications for our day to day work with clients, depicting a brain that is driven not by reason, but by emotion — a brain that has changed little in 20,000 years. The impact of these new understandings is already beginning to transform dispute resolution practice. Attend this cutting edge course introducing key concepts in integrative law and practical 'neuro-literacy'. Explore new perspectives on why we and our clients behave as we do during conflict and conflict resolution, and how we might do better. Experiment with understandings and practical techniques that can make our conflict resolution work more effective and satisfying for ourselves and our clients, and consider some ethical implications of these new understandings about how humans are wired. This workshop will provide a 'sampler' of major integrative law vectors, including brain science, neuroeconomics, and positive psychology, and will explore how the concepts of apology, forgiveness and restorative justice can be applied in collaborative practice."

Ms. Tesler is a California lawyer certified as a family law specialist, a fellow of the American Academy of Matrimonial Lawyers and one of the founders of the International Academy of Collaborative Professionals. The Roster Society promises a "lively, engaging, information-packed course [which] includes multimedia presentations, interactive exercises, and discussion."

The course runs from 9:00 to 4:30 on Monday 4 March 2013. The cost of registration is $200 for local members of the Roster Society and $150 for those who live outside the Lower Mainland, $200 for paralegals, articling students and junior lawyers, and a princely $400 for all others. For more information, drop a line to info@bccollaborativerostersociety.com.

Supreme Court Announces Assize Project in Vancouver

Chief Justice Bauman has announced (PDF) the implementation of a pilot project to test an assize scheduling system for long civil chambers applications in the Supreme Court's Vancouver registry. The pilot project began on 7 January 2013. The pilot project is only available for cases that do not involve criminal law, family law or judicial reviews.

Chambers Applications

Every court day, masters and justices hear applications in chambers. Applications are requests for orders, usually temporary or short-term orders, that are made using affidavit evidence and are expected to take a relatively short time to hear, anywhere from five minutes to two days. Chambers is the courtroom where applications are heard.

Normally, someone who wants to make an application will just pick the court day that the application will be heard. Although some days are predictably busier than others, things usually work out pretty well; most of the time, there's enough time to at least get the shorter chambers applications heard. However, when an application is going to take a half an hour or more to be heard, things can get pretty hairy.

There are only four and a half hours in the normal court day. (Court starts at 10:00 and runs to the lunch break at 12:30, with a fifteen minute recess partway through. Court resumes at 2:00 and runs until 4:00, with another fifteen minute recess.) This is not a lot of time. Applications of less than an hour routinely chew through all of the morning, leaving a handful of applications left that might take half an hour, a whole hour or two hours to be heard. As a result, these longer applications often get bumped to another day. I never count on a two-hour application being heard in Vancouver on the day it's scheduled, and it's only an even chance than a one-hour application will go ahead. The situation is worse in New Westminster.

This is not the problem the new pilot project is meant to address.

When an application will take two hours or longer, the rules of court require that the application be scheduled with the court's trial coordinator. In theory this means that each application is assigned to a judge who will be free that day and has the time to hear it. In reality, some applications are assigned to a judge and others wind up being listed on the dreaded overflow list.

Being on the overflow list is not good. A judge may become available to hear your application that day or a judge may not; either way, you wind up cooling your heels in the registry for at least an hour or two on the off-chance that you'll be lucky enough to land a judge before giving up and going back to the office.

This is the problem the new pilot project is meant to address.

The Assize Project

An assize system is a way of scheduling hearings which works in blocks of one or two weeks. If someone wants an application to be heard, all they get to pick is the assize period in which it might be heard. At the beginning of the period, a judge or the trial coordinator will triage all the applications set for that period and sort them from most important to least important, with the most important applications getting priority and going first. Applications that can't be scheduled wait to see what happens with the other applications being heard in that period; if an application gets done faster than expected or is adjourned, the unscheduled application next in priority gets heard.

In theory, this is a more flexible way of using judicial time which accommodates applications that unexpectedly collapse, allows every hour a judge is available to be occupied with an application, and therefore gets more applications heard in the same amount of time.

However, as the announcement from the Chief Justice clearly indicates: "placing an application on the assize list does not guarantee that the application will be heard." The other major downside is that the people making the applications have to be available during the entire assize period because you never know when your application will be heard, if it gets heard at all.

Getting on the Assize List 

An application may be put on the assize list if all of these factors are met:

1. The application will take between two hours and two days to be heard.
2. All of the lawyers and anyone who is representing him- or herself agrees to the application being put on the assize list.
3. Everyone is available for at least three of the five days in the assize period.
4. The case does not involve family law or judicial reviews.

The assize periods available for booking are listed on the scheduling page of the Supreme Court's website.

I'm looking forward to seeing how the pilot project pans out. If it works, I expect the project will expand to family law cases, and although I will have a great deal of difficulty working my schedule to be available during an entire assize period, if the new system gets long applications heard more frequently than they are at present, I'm all for it.