Category Archives: Access to Justice

Judicial Economy, Judicial Extravagance and Pension Splitting under a Matrimonial Property Order

By: Jonnette Watson Hamilton

PDF Version: Judicial Economy, Judicial Extravagance and Pension Splitting under a Matrimonial Property Order

Case Commented On: McMorran v Alberta Pension Services Corporation, 2014 ABCA 387

The Court of Appeal decision in McMorran v Alberta Pension Services Corporation determines an instrumentally important question in the pension and matrimonial property law areas. In addition, it is procedurally unusual for two reasons. First, although it is a matrimonial property action, the dispute is really between Justice Robert Graesser, the Court of Queen’s Bench judge who rendered the decision appealed from (McMorran v McMorran, 2013 ABQB 610) and the administrator of the Alberta public service pensions plans, the “appellant” by court order in the Court of Appeal — i.e., not between the former husband and wife who are both “respondents”. Second, the concurring judgment of Justice Thomas Wakeling disagrees with the majority judgment of Justices Ronald Berger and Frans Slatter on one statutory interpretation point, but no consequences appear to flow from that disagreement and the two judgments do not engage with each other on the point. The reasons for two separate judgments are not made explicit, but they appear to be a result of different perspectives on the value of judicial economy. And in these days of legal and public focus on access to justice issues and the need for a “culture shift” in the current legal system, I think it is important to consider whether we can afford judicial extravagance.

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Bill 202 v Bill 10: A Battle of the Bills

By: Ronaliz Veron and Sarah Burton

PDF Version: Bill 202 v Bill 10: A Battle of the Bills

Bills Commented On: Bill 202: The Safe and Inclusive Schools Statutes Amendment Act, 2014, 3rd Sess, 28th Leg, Alberta, 2014; Bill 10: An Act to Amend the Alberta Bill of Rights To Protect Our Children, 3rd Sess, 28th Leg, 2014

The Alberta Legislature has been the subject of some controversy in recent weeks. On November 20, Liberal MLA Laurie Blakeman introduced Bill 202: The Safe and Inclusive Schools Statutes Amendment Act, 2014, 3rd Sess, 28th Leg, Alberta, 2014. A week later, in an abruptly called press conference, Premier Jim Prentice described Bill 202 as “unnecessarily divisive” and announced that his government would introduce its own bill dealing with the issues raised by Bill 202. On December 1, Bill 10: An Act to Amend the Alberta Bill of Rights To Protect Our Children, 3rd Sess, 28th Leg, 2014 was introduced by the Progressive Conservatives.  After being subjected to widespread public scrutiny, Bill 10 was amended on December 3, 2014. By the next day, it was clear that the amendment did not quell the rising tide of opposition and on December 4, Premier Prentice announced he was deferring Bill 10’s Third Reading until 2015.

This post will examine the salient parts of both Bill 202 and Bill 10 and their impact on the human rights regime in Alberta. It particularly focuses on the heart of the controversy: how the creation of gay-straight alliances is treated under both Bills.  Serious concerns that remain to be addressed by Bill 10 will also be identified. Given Premier Prentice’s apparent willingness to step back to examine his party’s Bill, we can only hope that these pressing concerns will be addressed in the new year.

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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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