Author Archives: John-Paul Boyd

About John-Paul Boyd

John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family, a non-profit organization associated with the University of Calgary. The main work of the Institute involves undertaking research related to law and the family, public legal education, promoting evidence-based law and policy reform, and improving access to justice. John-Paul practiced family law in Vancouver, British Columbia for thirteen years before joining the Institute. He took his training as a mediator in 2005, his training as a parenting coordinator in 2007 and 2008, his training as an arbitrator in 2011 and his training as a collaborative practitioner in 2012. John-Paul has particular interests in law and process reform, children's rights and involvement in the justice system, the conflicts of laws and jurisdictional issues in general, heuristics and decision-making processes, and the psychology of separation and divorce.

We Versus Me: Normative Legislation, Individual Exceptionalism and Access to Family Justice

By: John-Paul Boyd

PDF Version: We Versus Me: Normative Legislation, Individual Exceptionalism and Access to Family Justice

In many of Canada’s family law courts, especially our provincial courts, the majority of litigants now appear without counsel. This state of affairs should have been a foreseeable consequence of the diminution of legal aid representation in family law cases coupled with the relative absence of market forces impelling private family law lawyers to reduce their rates or embrace new service models, but it is nonetheless where we find ourselves today.

It is easy enough to point to the observable consequences of this superabundance of litigants without counsel – chief among them the increased number of ill-conceived chambers applications, the ever-expanding length of trials and the congestion presently plaguing court registries – and shudder in horror. However, it must be borne in mind that the justice system is not our system, a system for judges and lawyers, but their system, a system that belongs to the users of the system, the litigants themselves. As a result, despite the inconveniences enuring to the mutual discomfort of bench and bar, I am hard pressed to conclude that there is anything fundamentally wrong with the growing presence of unrepresented litigants; the situation is infelicitous, to be sure, but not iniquitous.

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A Methodology for Beginning Fundamental Justice Reform

By: John-Paul Boyd

PDF Version: A Methodology for Beginning Fundamental Justice Reform

Discussion on the reform of civil justice in Canada reached a new crescendo last year with the publication of the various reports of the national Action Committee on Access to Justice in Civil and Family Matters and the initiatives that have popped up here and there across the country, and continue to pop up, as a result. An enormous amount of learned discussion on justice processes, barriers to justice, the meaning of access to justice, potential solutions and reform processes is available on websites of organizations like the Canadian Forum on Civil Justice, Slaw and the Canadian Bar Association.

As the various initiatives move forward, the issue of reform processes has in particular taken on a new importance. The reasons for this are fairly straightforward: the rules and principles of the English common law justice system are 900 years old and somewhat hidebound as a result; the system engages a significant number of influential stakeholder groups that must be convinced to support efforts toward substantive reform; the system is managed by a dense bureaucratic administrative structure laden with regulations, politics and vested interests that must be reorganized and reenergized; and, the system itself is incredibly expensive, as are the cost of mistakes and false starts. The process most likely to be successful must be one that is capable of reconciling these intransigent, obdurate circumstances and achieving broadly supported change. At present, the most promising reform process available is the social lab approach, which has been eloquently written about by people such as Nancy Cameron and Nicole Aylwin.

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Unified Family Courts: An Established Mechanism for Improving Access to Justice

By: John-Paul Boyd

PDF Version: Unified Family Courts: An Established Mechanism for Improving Access to Justice

Lawyers practicing in jurisdictions with multiple trial courts and no unified family court will be aware of the challenges facing litigants without counsel. First there’s choosing the right law, because of the overlapping federal and provincial legislative jurisdiction in family law matters. Then there’s choosing the right court, because of the trial courts’ simultaneous but asymmetric subject matter jurisdiction. And then there’s the question of the courts’ relative degrees of complexity, expense and accessibility, and the extent to which corollary social and legal support services are or are not embedded in the court process.

One obvious solution might lie in amalgamating the trial courts to provide litigants with one court, with easy to understand rules and processes that are proportionate to the nature of the dispute and specific to family law, that is integrated with the relevant social services. This is more or less the approach taken in parts of Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Ontario and Saskatchewan, where there is a single court for the resolution of family law disputes, but it seems to be off the menu in Alberta and British Columbia for reasons that escape me.

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How Lawyers Resolve Family Law Disputes

By: John-Paul Boyd

PDF Version: How lawyers resolve family law disputes

This past July I was able to sample the views of 167 lawyers and judges attending the Federation of Law Societies of Canada‘s National Family Law Program in Whistler, British Columbia through a survey designed and implemented by two prominent academics and the Canadian Research Institute for Law and the Family. The survey asked questions about participants’ views on shared parenting and shared custody, litigants without counsel, and dispute resolution.

In the course of digesting the resulting data for a report, I noticed something very interesting about the information we’d collected on dispute resolution. We had asked lawyers to tell us the percentage of their family law cases which are ultimately resolved by: arrangements made by the parties themselves; negotiation involving lawyers; mediation; collaborative settlement processes; arbitration; through court with the assistance of a judge at an interim hearing or a judicial conference; or, through court at trial. Here’s what the numbers told us:

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Learnings from the Demographic Data on Litigants Without Counsel

By: John-Paul Boyd

PDF Version: Learnings from the Demographic Data on Litigants Without Counsel

The demographic information on litigants without counsel available to date reveals a number of interesting patterns: most litigants appear to be 40 years old and older, and people in that age range are involved in litigation at rates far higher than those in younger age groups; although most litigants have lower incomes, a significant number have incomes around or exceeding the average income; and, litigants’ often high incomes match their educational achievements, which often exceed the average. All of this information strikes me as potentially useful when designing services and reforming processes for litigants without counsel.

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