B.C. family law reform proposals aimed at less adversarial system, smaller burden on courts

Law360 Canada (December 12, 2019, 1:37 PM EST) -- The government of British Columbia is considering a significant revamp of how family matters are dealt with in provincial court, with an eye to making the system less adversarial and easier to navigate, as well as helping to ensure actions can be resolved before taking the big step of going before a judge.

The recommendations come from the provincial court family rules working group, which began its work in 2014 after the province brought in a new Family Law Act. The working group has suggested a new model for the system and its rules, which envisions prioritizing urgent matters; having group members (with some exceptions) attend an early assessment and referral process to identify their needs and concerns; a mediation process to see if issues can be resolved before attending court; a mandatory parenting information and education program; and a family management conference designed to help parties who do not resolve their matters outside of court to prepare and plan. The forms people use in court would also be amended to bring in a more “question and answer” format, giving general instructions on how to fill them out to help those who may be representing themselves.

According to the provincial court’s 2017-18 annual report, 59 per cent of new civil cases were family law matters. The court’s family rules have not been updated since 1998.

Nancy Carter of the Ministry of the Attorney General’s Family Policy, Legislation and Transformation Division, who co-chaired the working group, said that there is a growing recognition among family law practitioners that the traditional civil litigation lens that has been applied to how courts have been structured around family law issues has not worked best for families.

“The system often inflames adversarialism, and because families are dynamic, parenting and support arrangements made in year one might need to be changed in year 10,” she said. “There is a real call for change, to look at less adversarial approaches and having parties participate in a consensual dispute resolution before going to court.”

The proposed changes are intended to do “front-end loading” to find what people’s problems are, said Wesley Shields, a working group member and family lawyer with FH&P Lawyers in Kelowna.

“If someone has got issues with respect to domestic violence occurring in the family, they shouldn’t be treated the same way as other individuals who are trying to deal with the issues of parenting time, for example,” he said. “This is about trying to find a holistic approach where we can identify what the problems are early, what we can do to resolve them and what direction we should go.”

Shields said it “comes through pretty loud and clear” that the purpose of the proposals it to take things out of the court process itself and be less adversarial. He noted individuals who find their family law matters before provincial court are often self-represented.

“People are looking at alternate means of resolution, and this certainly provides the means in provincial court to say there are other options available. It gives them a whole number of different ways of getting from point A to point B,” he said. “And I think having options available at an earlier stage is an opportunity that a lot of litigants would probably welcome, because you’re hard-pressed to find someone who can’t wait to get their day in court and rush off to trial.”

In response to the working group’s discussion paper, B.C. Attorney General David Eby told The Lawyer’s Daily that “there are some basic principles that pass the nod test” for everyone involved in family law: that people should be prepared when they go to court, and appearing before a judge should only be the last resort for families who are working their way through difficult circumstances.

“But the reality has been a little bit different, so we have been working with the courts and lawyers who work in this area to more fully realize those objectives,” he said. “There is a concern among many British Columbians about the state of the system, but it’s important to the extent that it is possible that we come up with a set of rules that people will be able to follow and help us realize some of those goals because we are still not there yet.”

It is very frustrating for someone who has taken time off work to go to court to have their matter put over, and equally frustrating for the court when an individual is not properly prepared for a hearing, said Eby.

“And beyond that it starts to create the sense among everybody that there is a huge amount of time and resources wasted in a system that doesn’t have a lot of resources to spare,” he said. “And it is needlessly cruel to have people to go through the stress of coming to court, only to see their matters set over. So the goal of this is to keep everybody out of court who doesn’t need to be there and provide support to get all their materials together, so on the day they actually have to show up the file gets moved forward in a significant way. Those are really basic goals, but they have proven surprisingly elusive.”

Carter said, once feedback is given, the working group will look at it and see if some of the proposed changes need to be adapted, abandoned or changed, and then make recommendations to the steering committee, which consists of provincial court Chief Judge Melissa Gillespie and Deputy Attorney General Richard Fyfe, to prepare an order-in-council for the provincial cabinet to consider. She noted some of the early resolution aspects of the plan are already being piloted in the Victoria courthouse.

“There is likely to be some time between when the rule gets approved by cabinet and when it gets implemented,” she said. “There is obviously education with the bar, and some system changes that are required so there will no doubt be some implementation lag. But I think people really want to make sure this moves fairly quickly.”

Although child welfare is also within the jurisdiction of the provincial court, Carter noted those actions involve a separate set of rules that are not part of the current process. Comments can be provided by clicking here.

The consultation runs until Dec. 16.

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