On Dec. 18 last year, the Alberta Court of King’s Bench and Court of Justice mandated four pre-court requirements in family law cases as part of the province’s family justice strategy — completing an online parenting after separation course (if necessary), meeting with a family court counsellor (unless represented by a lawyer), providing financial disclosure, and attending an alternative dispute resolution (ADR) process.
All pre-court requirements must be completed prior to a party filing any document commencing a family law action, or prior to filing a new application after a family law action has been commenced unless a waiver or deferral is granted. Completion of these requirements is waived if the parties reach an agreement without filing a court application, but financial disclosure must still be completed for a consent child or partner (spousal) support order.
“Alberta’s government is making the family justice system more accessible to ease the stress on Albertans dealing with family law matters during an already difficult time,” said Justice Minister Mickey Amery. “We are expanding pre-court services so that Albertans can have access to a range of services before filing a claim or attending court.”
This process currently applies only to legal proceedings taking place in Edmonton and Calgary — however, as more resources become available, the province said it anticipates it will expand to other judicial centres. And there are some exceptions to the mandatory pre-court requirements, such as for applications for protection orders, applications that have been approved to proceed on an urgent basis and consent orders. Applications to waive or defer the mandatory requirements may also be granted.
Justice Debbie Yungwirth, co-chair of the Court of King’s Bench’s family law steering committee, said her hope for the new process is that in the long-term, parties will be able to get the resources they need and resolve their disputes without having to go to court at all “except maybe to sign a consent order.”
“This will reduce the amount of conflict to which children are exposed when their parents engage in litigation and will reduce the number of matters coming into our courts — which have increased considerably since COVID,” she said. “And ultimately, it will also reduce lead times to our various processes so that those matters that do need to rely on court adjudication won’t have to wait as long.”
The Alberta Family Law Association (AFLA), which has a membership of over 400 family lawyers in Alberta, said in a statement that it supports funding and accessibility being prioritized and increased for the judicial system’s pre-court assessment for self-represented litigants, the requirements that self-represented parties meet with a family court counsellor and “appropriate” dispute resolution.
“AFLA supports a single system of support for litigants accessing the courts with family matters, regardless of what court or what legislation is being relied on,” the association said in a statement.
But Wayne Barkauskas, a partner at Calgary-based Wise Scheible Barkauskas Family Law, said the requirements have put up “more hurdles to getting in front of a judge.”
Wayne Barkauskas, Wise Scheible Barkauskas Family Law
Alberta has the lowest per capita number of King’s Bench justices in the country, said Barkauskas, and that has created a situation where it is “incredibly difficult” to get in front of a judge.
“It almost seems like over the last couple of years the courts have done more and more things to try and keep people out of court, and not in a good way. And so, this is just one more step, and what it does is hugely increase the cost to people who are represented by counsel to get solutions through a court,” he said. “Cookie cutter solutions for families almost never work, and a system where every family is forced to go through the same process isn’t helpful. You really need a system that takes into account the unique needs of each family — and that takes resources at the front end.”
In its statement, AFLA also said it had concerns about rigid approaches for all families, regardless of circumstances, where “doing so increases the financial cost to families and delays to needed solutions.”
“The imposition of requirements on all without any concerted triage of a family’s unique needs is quite likely to impose greater hardship upon many families,” the statement said. “AFLA continues to call on the Government of Alberta to prioritize the wellbeing of Albertan families and foster an accessible system of family justice by adequately funding legal aid certificates and duty counsel, as the cornerstone of access to family justice for vulnerable Albertans.”
Family lawyer Ashley Cox of Brown Law Group agreed that there are going to be circumstances where it is going to be difficult to get in front of a judge under the new strategy, but there are going to be other situations where it will increase the number of people resolving things outside of court.
“It’s encouraging to see some type of resolution before we step inside the courtroom — often that was not happening on every single file, and now it’s a requirement. It also requires that family violence be screened before any alternative dispute resolution, which is new and obviously a positive,” she said. “I think it can be very beneficial for self-represented parties to get legal information about the process and other information before they go into court. So, there are a lot of files that are now going to settle, whereas before they weren’t necessarily meeting or negotiating.”
For her part, Justice Yungwirth said that in some ways “we have allowed too much access for people before they’re ready.”
“It’s time for us to better manage our resources. For years and years, it’s pretty much been court on demand — anyone who wanted any process could just file their application and come in,” she said. “We’ve sort of let the litigants control how things went, and now we are trying to be much more responsible as a court for the efficient use of our resources. So, for senior members of the bar who have always been used to court on demand, this is a difficult change, but I think the junior bar has not pushed back as much on this because they have come from a place where the encouragement of alternative dispute resolution has drilled in right from law school.”
But one area where there was general agreement was the need for more Court of King’s Bench justices in Alberta. Barkauskas said there is money sitting in place from the federal government to appoint 17 additional judges, but the federal government wants Alberta to implement a unified family court system and that has stalled the appointment process.
“[The province] doesn’t want the provincial jurisdiction to be sitting with the same judges that are appointed by the federal government,” he said. “I’m not going to get into the politics of that, but something that the profession in Alberta has now picked up on in the last few months is this suggestion that rather than moving to a unified family court, at least give Alberta a family division of King’s Bench and give us judges who want to do family law and who know family law. That would be of huge benefit to the province not just in family law matters, but it would free up judges to deal with other civil matters that are also backlogged.”
The Alberta Family Law Association said it also continues to call for a specialized unified family court “with a single level of trial/hearing court to make the family court system less confusing for those who access it and are seeking legal information, and judges specialized in family law.”
“If a full unified court system cannot be implemented quickly, then we support the concept of creating a ‘family division’ of the Court of King’s Bench immediately with specialized judges familiar with family law issues,” the association said.
Justice Yungwirth noted evidence has shown that Alberta is the fastest growing province in Canada — and that automatically means an increase in family disputes, she said.
“So, covering those disputes with our resources, which are strained, is very difficult at times,” she said. “There’s many reasons to try ways to keep people out of court but at the same time give them the help they need. This isn’t about blocking access to the courts — it’s about doing what we think is best for families.”
Representatives from the Alberta government did not respond to a request for comment.
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