SUPREME COURT OF BRITISH COLUMBIA

 

 

RECOMMENDED FAMILY LAW PROCEDURES

 

 

 

Report of the Family Law Committee to the Chief Justice

Consultation Draft

May 8, 2001

 

 

Members of the Family Law Committee

Mr. Justice Collver
Master Donaldson
Madam Justice Levine (Court of Appeal)
Madam Justice Martinson, Chair
Mr. Justice Metzger
Mr. Justice Preston
Ms. Sainty, Deputy Registrar
Madam Justice D. Smith
Mr. Justice K. Smith
Ms. Wellburn, Registrar

Members of the Design Committee

Mr. Justice Cole
Madam Justice Martinson
Master Patterson
Mr. Justice Preston
Mr. Justice Warren

BACKGROUND TO THE REPORT

 

In the summer of 2000 the Family Law Committee, with the approval of the Chief Justice, began a review of how the Court deals with family law cases. Different procedures are being followed in New Westminster than those followed in Vancouver. Still other procedures are used in other parts of the province.

The Committee was aware that all jurisdictions in Canada have been reforming their family law procedures. Most have opted for a Unified Family Court. We collected information about the procedure in other Canadian jurisdictions. We considered an analysis comparing France, England, Australia, and California which was prepared by Madam Justice Trussler of the Alberta Court of Queens Bench as part of a study leave to examine these issues. We also examined the family law initiatives of the Provincial Court of British Columbia.

Using the information collected, the Committee spent a day in November 2000 identifying the attributes of an effective process for dealing with family law cases, identifying problems with the systems we now have in place, and suggesting solutions.

Coincidentally, the Canadian Judicial Council organized a meeting in November 2000 in Ottawa designed to examine best practices for family law across the country. Supreme Court Judges from every province and territory, all with knowledge of and an interest in family law, met for two days at the end of November. Justices Martinson and Preston were able to attend.

The Committee then made a proposal to the Chief Justice in December to deal with family law cases in the Lower Mainland. In January, the Chief Justice, in consultation with the executive committee, generally approved the proposal and asked the committee to propose an implementation design and to include a modified proposal for the rest of the province.

 

A Design Committee was formed and prepared this report. It was approved by the Family Law Committee at its April 11, 2001 meeting. The procedures recommended in this report were approved in principle by the full Court at the annual Supreme Court Conference in May 2001.

 

INTRODUCTION

The Committee proposes a family law procedure for the Province that has these features:

1. An early Judicial Case Conference presided over by a Judge or Master that:

      1. identifies and narrows issues and encourages settlement; and

      2. sets a Case Management Plan (a form of litigation plan) with steps to be taken and time limits up to and including trial.

2. A Case Follow-up Plan that involves:

(a) individual case management:

(i) in all cases for Vancouver and New Westminster

(ii) in the following cases for the rest of the province:

      1. administrative tracking of cases by a Family Law Coordinator to ensure that the Case Management Plan is followed.

  1. Adequate resources to:

      1. provide conciliation and legal assistance to family law litigants;

      2. inform family law litigants about family law, the court process and the resources available; and

      3. provide timely and effective custody and access assessments.

 

Court approval of the Committee’s report followed an extensive process which involved consideration of the issues in some depth and consultation with Ms. Cindy Friesen, Ms. Sue Smolen, and several Judges and Masters who have an interest in Family Law. We also had preliminary discussions with members of the Executive of the New Westminster and Vancouver CBA Family Law Sections. Further extensive consultation with the bar on a very broad basis is the next step in the process of development of a set of revised practices and procedures for the conduct of family law matters in the province.

The purpose of this report is to provide a focus for that consultation.

The Committee recommends that changes to practices and procedures arising from this report be implemented on January 1, 2002. If amendments to the Supreme Court Rules are required, that goal may be unrealistic.

We have concluded that the resources available to the court are woefully inadequate and significantly less than those provided in other provinces, in particular Alberta, Ontario and Quebec. We do not believe the objectives we have identified in the report can be met without adequate resources. We are particularly concerned about the horrendous delays experienced in the obtaining of custody and access reports. We recommend that the Chief Justice meet with the Attorney General as soon as possible with a view to obtaining the resources we have identified and bringing to the Attorney’s attention the urgency of the custody assessment situation.

We address our recommendations under these headings:

Basic Principles

Legal Principles

Objectives of an Effective Family Law Procedure

Areas of Concern with Existing Procedures

Recommendations in Further Detail

 

BASIC PRINCIPLES

The Committee has been guided by these basic principles:

Children:

Families:

Families form a fundamental part of Canadian society. The break-up of the relationship can be emotionally and financially difficult whether or not there are children.

 

Characteristics of an Effective Family Law Procedure:

 

LEGAL PRINCIPLES

The Committee identified a number of relevant legal principles:

Generally:

 

Procedurally:

The Supreme Court Rules support case management in family law cases. The object of the Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits. (Rule 1(5)) The Rules give a judge the power to meet that objective. The court may direct that an action be set down for trial at a particular time and place and that the notice of trial be issued by the registry. (Rule 39(4)) When making an order under the Rules, the court may impose terms and conditions and give direction as it thinks just. (Rule 1(12))

In most cases it is not speedy, just or inexpensive to have a series of judges deal with pre-trial applications. In addition, the court can control the process so long as the process is "just" to all the parties and is speedy and inexpensive. Where children are involved, the best interests of the children must be ensured. The Divorce Act requires that the court, in making custody and access orders or interim custody and access orders, take into consideration only the best interests of the child of the marriage. This should be determined by reference to the condition, means, needs and other circumstances of the child. (s. 16(8)). Similar provisions exist in the FRA.

The New Westminster Family Law Project, operating under the existing Rules, formalizes these principles and requires that a litigation plan be prepared and approved by the case management judge. Chief Justice Esson, in a Notice to the Profession dated August 20, 1996, said the project is intended to reduce the delay, expense and entrenched positions which are too often characteristic of family law disputes.

The Vancouver Early Intervention Practice Direction, dated December 2, 1995 and signed by Chief Justice Esson, also operates under the existing Rules. It says that the purpose of early intervention is to: [1] identify legitimate issues and eliminate or reduce those which are clearly frivolous or unnecessary; [2] reduce the number of unnecessary interim applications or reduce the time required for an application by clarifying the true issues for the application; [3] reduce the number of actions set for trial and minimize the length of trials by the early identification of real issues; and [4] help to reduce the delay of litigation and the costs to litigants.

 

OBJECTIVES OF AN EFFECTIVE FAMILY LAW PROCEDURE

The Committee identified a number of objectives of an effective family law procedure based on these principles. The procedure should:

1..Encourage and assist family law litigants to achieve an early settlement of all or at least some of the contested issues by ensuring early disclosure and building settlement opportunities into the process;

2. Ensure, in cases where agreement is not possible, that disputed issues are resolved by the court in a timely, cost effective and just manner by ensuring that:

(a) cases are resolved either by agreement or by a decision of the court within a year of their commencement (unless the circumstances make a longer period appropriate); and

(b) the number of court appearances are kept to a minimum, with the use of written applications, teleconferences and videoconferencing being used when possible.

3. Ensure that litigants have access to alternate dispute resolution procedures, including, conciliation/mediation, that are attached to the court;

4. Ensure that litigants have access to legal advice;

5. Ensure that people who participate in the court process have easy access to information about the court process, the laws that apply and the resources that are available to help them;

6. Provide for continuity of judicial involvement where possible;

7. Enhance the knowledge and interest of family law Judges conducting family law matters;

8. Provide flexible scheduling for those cases where an early resolution is not in the best interests of the parties or their children; and

9. Make the court process accessible to all by using simple procedures.

 

AREAS OF CONCERN WITH EXISTING PROCEDURES

The Committee recognizes that lawyers, Judges, Masters and court administrative officers have made efforts to deal effectively with family law cases. However, several areas of concern still remain. They exist to varying degrees throughout the province:

1. Interim applications;

2. Settlements that are late rather than early;

3. Delay in interim or final hearings or trials;

4. Cases left in limbo;

5. Lack of continuity in dealing with files;

6. Lack of resources; and

7. Litigants without lawyers.

 

1. Interim Applications

There are a number of problems with interim applications:

• lack of court time

• lack of preparation, including lack of particulars

• late affidavits

• incorrect time estimates (either inadvertently or to achieve priority on the chambers list)

• scheduling conflicts of lawyers

 

2. Settlements that are Late Rather than Early

Most family law cases ultimately settle, though often on the eve of trial. There are a number of disadvantages to this:

 

3. Delay in Interim or Final Hearings or Trials

There are many causes for delay:

• by consent

• lack of preparation (including lack of particulars)

• lack of court time

• incorrect time estimates

• when custody of children is in issue delays in assessment and resolution of family law matters should not be tolerated;

• when the division of property is delayed, assets change form and value and benefits often flow to the party holding the assets and taxation considerations multiply. This renders the litigation more expensive and less likely to produce a fair result;

• if judicial time is limited, family law cases are sometimes not given the same priority as criminal cases, even if children are involved and the accused person in the criminal case is not in custody and there is no danger to the public.

 

4. Cases Left in Limbo

 

5. Lack of Continuity in Dealing with Files

• delay

• extra cost

• frustration

• inconsistent results

• rota commitments often require the Judge to deal with the cases in abbreviated hearings at 9:00 and 4:00; and

• long delays are introduced because of judicial travel or other commitments.

 

6. Lack of Resources

There is a lack of resources and information about available resources, the court process and the legal framework within which the court works.

Information

There is limited information available to family law litigants concerning:

Resource Assistance

There are virtually no court attached resources available and limited resources, generally, in the following areas:

 

Assessments

 

7. Litigants without Lawyers

There are an increasing number of litigants without lawyers:

 

RECOMMENDATIONS IN FURTHER DETAIL

The Committee recommends a case management system for the whole province with the following features:

1. A Judicial Case Conference conducted by a Judge or Master that:

      1. identifies and narrows issues and encourages settlement; and

      2. sets a Case Management Plan (a form of litigation plan) with steps to be taken and time limits up to and including trial.

2. A Case Follow-up Plan monitored by a Family Law Coordinator to ensure the Case Management Plan formulated at the Judicial Case Conference is followed; and

3. Adequate Support Resources.

 

1. A Judicial Case Conference (Judges and Masters)

a. Reasons For Judicial Case Conferences

The Committee recommends that litigants be required to participate in a case conference presided over by a Judge or Master. We believe that the court has an important and powerful role to play in encouraging parties to resolve their disputes in a co-operative, civilized and dignified way. Judges and Masters can encourage settlement by using their knowledge of the law, likely outcomes at a hearing or trial and their knowledge of the process, including settlement options and the advantages of settlement to encourage an early resolution. If there is to be a contested hearing, they can ensure that it will proceed in a speedy, efficient, economical and just way.

The Canadian Judicial Council supports Judges conducting case conferences in family law cases. The early intervention program that has been in place in Vancouver has proven effective. The New Westminster Model for dealing with family law incorporates a form of early intervention by requiring litigants to attend the first contested application to consider a litigation plan. Case conferences have proven effective in the Provincial Court of British Columbia. A form of judicial conference is in place in every province. In Toronto, a jurisdiction similar to the Lower Mainland, a mandatory case conference has been in place for a number of years and has proven effective in meeting the objectives we have identified.

  1. Post-Pleading Conferences Compared to Pre-Hearing Conferences

We have considered Post-Pleading Conferences that take place once the pleadings have been filed, (as in the Vancouver Early Intervention Conference) as well as Pre-Hearing Conferences where a conference is generally not required unless the court is asked to decide an issue. We looked at the advantages and disadvantages of each:

 

Post-Pleadings Conference

• allows management of all cases at an early stage, often before conflict is created or escalated;

• was tried in Vancouver and was viewed favourably;

• allows consent orders (and even divorce decrees) to be made at an early stage;

• forces lawyers and litigants to identify the issues early; and

• gets cases on track quickly.

• often takes place before there has been full disclosure so resolution is unlikely;

• covers cases that do not need assistance; and

• not enough information will be available to set an effective litigation plan.

Pre-Hearing Conference

• applies to cases where the parties want the court to make a decision;

• any party has the option of requesting a case conference at any time;

• gives the parties six months to resolve the case without having to go the time and expense of a Judicial Case Conference; and

• in Toronto, where this process has been used for several years, 75% of the cases settle.

• this procedure requires a conflict before the court intervenes. It is better to meet with people before conflicts arise.

• litigants can wait for six months before considering alternative ways of resolving the dispute.

 

c. Recommendation

The Committee recommends a Pre-Hearing Conference for the following reasons:

 

d. Features of a Pre-Hearing Judicial Case Conference

We recommend a Pre-Hearing Judicial Case Conference with the following features:

 

Pre-Hearing Judicial Case Conference

Purpose

To encourage and assist family law litigants to achieve an early settlement of all or at least some of the contested issues by ensuring early disclosure, identification and discussion of them.

To ensure, in cases where agreement is not possible, that disputed issues are resolved by the court in a timely, cost effective and just manner, and that court appearances are kept to a minimum.

 

Nature of the Case Conference

 

Length of the Case Conference

45 minutes to one hour

 

Preparation

The parties should be prepared to identify the issues and discuss those in dispute. No written material is required

 

Judicial Case Conference

The Case Conference will be set by the Court upon the request of one or all of the parties.

A Case Conference must take place:

1. Before the first Interim Application:

Timing

Exceptions

• s. 57 order (no possibility of reconciliation);

• s. 67 property preservation order;

• personal restraining orders;

• other matters of extreme urgency; and/or

• in all emergency applications except s. 57 and s. 67 orders, a Judicial Case Conference must be held as soon as possible.

2. Before an Application to Vary a Final Order;

3. Before setting a matter for Trial or Summary Trial; and

4. Before applying for a Confirmation Order or Provisional Order (only the party applying must attend).

A Judicial Case Conference must be held 180 days after the commencement of the action. if no other event has triggered it.

 

Methods Used to Obtain Judicial Case Conferences

When no event has triggered a Case Conference 180 days after the commencement of the action, the court will send a notice to lawyers and parties advising them that the action will be dismissed unless a Judicial Case Conference is arranged within 30 days. If nothing is done within 30 days the action may be dismissed by a Judge by desk order.

In all other cases a Judicial Case Conference will be set by Praecipe.

 

Objectives

General Objectives:

• judicial:

» settlement conference

» mini-trial

• non-judicial:

» conciliation/mediation

• if there are children, they will have an ongoing relationship (delay causes uncertainty and stress, especially for children);

• cost; and

• uncertainty of the result of a court hearing.

 

Additional Objective Specific to Judicial Case Conferences Triggered by Interim Motions

If the interim issues are not settled, to encourage a substitution of an early final hearing for an interim hearing, with an agreement in place for a temporary solution.

 

Case Management Plan Objective

To determine the steps that need to be taken to ensure a final resolution of all outstanding matters in a just, speedy and inexpensive manner. The steps will vary depending on what the triggering event is. For example, if the triggering event is an application for:

(1) An interim hearing, the presiding Judge or Master should:

• identifying the real issues;

• requiring an agreed statement of facts if appropriate;

• requiring affidavits to be succinct and focussed on the issues;

• setting a realistic time estimate for the hearing which includes arguments and time for the Judge to decide; and

• requiring the exchange of case law and written argument when appropriate.

 

• a settlement meeting with just parties and counsel;

• discoveries;

• other settlement mechanisms such as mediation, a judicial settlement conference or a mini-trial;

• a pre-trial conference; and

• trial.

(2) A trial, the presiding Judge or master should prepare the case for trial by:

 

2. A Case Follow-up Plan

Rationale

The Committee concluded that cases cannot be resolved in a timely way without having the means of following up on the Case Management Plan. We recommend procedures based on the successful family law case management model developed in New Westminster.

Method

The method we recommend has a judicial and an administrative aspect to it:

(a) Individual Case Management by Judges and Masters; and

(b) Case Flow Management (Administrative Follow-up).

 

(a) Individual Case Management by Judges and Masters

Rationale

 

The Lower Mainland

We recommend a Six Month Rota in the Lower Mainland based on the New Westminster model. Trials (except summary trials) would continue to be assigned to Judges on the General Rota. Family Law Rota Judges and Masters would do all other family law matters, including the Judicial Case Conferences and Desk Order divorces. The Judge or Master would manage the case upon which he or she presided at the Judicial Case Conference. Judges as well as Masters would hear interim applications in cases assigned to them. Masters would transfer to a Judge matters requiring a final order. When possible, case conferences on matters requiring final orders would be assigned to a Judge. At the end of a Six Month Rota the cases assigned to a Judge or Master would be assigned to his or her successor.

 

We suggest:

 

The Province Outside the Lower Mainland

We recommend individual case management outside the Lower Mainland in the following cases:

• request by a party or the parties; and/or

• recommendation by a court administrative officer.

 

(b) Case Flow Management (Administrative Follow-up)

The Committee recommends that each family law case meet the following time lines (unless otherwise ordered by the court):

In making these recommendations, the Committee is well aware that there are circumstances in which early resolution may not be desirable because of the specific circumstances of the case including the emotional condition of one or both parties. However, it is the view of the Committee that undue delay has characterized family law proceedings in the past and led to many of the problems that the public associates with the family law process. The time lines are suggested in order to encourage early resolution except when the justice of the individual case indicates that a longer time is appropriate.

The Committee recommends that judgments in family law cases be given within 30 days of the hearing or trial. If that is not possible, we recommend that the Judge or Master consider dealing with child custody or access and child maintenance within 30 days and reserving other issues.

The Committee believes that these time limits cannot be met unless there is a system in place to monitor them. This is primarily, though not exclusively, an administrative rather than a judicial function.

We suggest that meeting the time lines can be accomplished in two general ways:

(i) Ensuring that motions, trials, settlement conferences, mini-trials and case conferences proceed when scheduled; and

(ii) Ensuring litigants follow the Case Management Plan.

 

(i) Ensuring Cases Proceed when Scheduled

In order to ensure that family law cases are given the priority they deserve, and to "put children first", we recommend these guidelines:

• cases involving child custody, access or maintenance be given high priority;

• other family law cases generally be given priority over other civil cases especially if the parties have children, though the children are not directly involved in the litigation;

• high priority be given to cases that have already been adjourned;

• criminal cases should not receive priority over family cases, and in particular family cases involving children unless:

» the accused person is in custody;

» the accused person is facing a custodial sentence; and/or

» the impact on complainants (other than financial) would be significant.

• Cases that should have priority should be flagged by the Court Registry and brought to the attention of the presiding Judge or Master.

 

(ii) Ensuring Litigants Follow the Case Management Plan

The Committee recommends that a Family Law Coordinator be responsible for ensuring that the Case Management Plan is followed.

  

The Lower Mainland

• two full-time coordinators in Vancouver; and

• one full-time coordinator in New Westminster.

 

Outside the Lower Mainland

The Committee recognizes that one of the major causes of delay and expense in family law litigation is the inordinate amount of time that counsel are kept waiting for their matters to proceed in family chambers. We recommend that steps be taken to eliminate inordinate delay in chambers by:

 

3. Adequate Support Resources

We note that Ontario has 17 Unified Family Court sites. We are told that each site has a Family Law Information Centre ("FLIC") attached to it which provides the resources that we recommend for our court. The Superior Court of Ontario in Toronto also has such a centre. We are told that both Edmonton and Calgary have FLICs attached to the Court of Queens Bench.

We recommend such centres, or an appropriate modification, throughout the province to provide access to the following:

 

Resources

 

Information

What?

• what the procedure is; and

• how to access it.

How?

Accessibility?

 

Assessment

The ability to conduct custody and access assessments in an effective and timely manner and within no more than three months of the order directing the assessment.

We are pleased that as a result of the meeting of the Canadian Judicial Council in November 2000, mentioned in the Introduction to this report, the Chair of the Council, Chief Justice McLachlin, wrote the following letter to the British Columbia Attorney General and Deputy Attorney General. It is dated April 9, 2001 and supports increased court support services and court related social services for family law litigants and family law courts in the province:

"In furtherance of its mandate to promote efficiency and uniformity, and to improve the quality of judicial services in superior courts, the Canadian Judicial Council unanimously approved, at its March 2001 meeting, a resolution brought forward by its Trial Courts Committee, supporting fully serviced family law courts, including Family Law Centres providing access to family law support services, such as legal aid, assistance for self-represented litigants, duty counsel, family assessment, mediation, conciliation and supervised access services, parenting and childrens’ programs, child support guidelines information and assistance with calculations and counsel or amicus curiae for children.

The adoption of the resolution flowed from a meeting last fall of 22 judges active and knowledgeable in family law, representing all provincial and territorial superior trial courts, whose purpose was to exchange and compare procedures, recent developments and services associated with family law on a national basis. It was concluded, following the ensuing two-day discussion, that there appeared to be a wide discrepancy in the level and quality of family law support services provided in the various jurisdictions across the country.

As Chairperson of the Council, I am writing to the federal Minister of Justice and to all provincial and territorial Ministers of Justice requesting your support for the provision of increased court support services and court related social services for family law litigants and family law courts. On behalf of the Council, I urge you to encourage your governments to review and increase funding for fully serviced family law courts and for the continuation or establishment of comprehensive independent Family Law Centres dedicated to assisting family law litigants."