Category Archives: Access to Justice

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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Judicial Dissent over Priorities in Civil Justice: Queue-Jumping and the Commercial List

By: Sarah Burton

PDF Version: Judicial Dissent over Priorities in Civil Justice: Queue-Jumping and the Commercial List

Case Commented On: Lustre Studio Inc. v West Edmonton Mall Property Inc, 2014 ABQB 525

In Lustre Studio Inc. v West Edmonton Mall Property Inc, 2014 ABQB 525, the Honourable Mr. Justice B.R. Burrows provided a candid window into judicial frustrations with access to justice in Alberta.  In pointed words, he expressed dissatisfaction with the courts’ willingness to prioritize and accommodate commercial cases through mechanisms unavailable in family and non-commercial matters. While Justice Burrows clearly criticizes this preferential treatment, he also expresses resignation in quelling the tide. This decision implicitly questions the priorities of our justice system and the preference given to commercial matters over non-commercial cases, even when they urgently require the court’s attention. Practically speaking, Justice Burrows may be correct in stating that expanded accommodations for commercial cases are here to stay. If so, this innovative project should be harnessed to create equally effective mechanisms for family and other non-commercial cases. Continue reading →

The Vicious Spiral of Self-Representation in Family Law Proceedings

Written by: John-Paul Boyd

PDF Version: The Vicious Spiral of Self-Representation in Family Law Proceedings

A lot of good research on litigants without counsel has been published in the last three years, most notably, in my view, Julie Macfarlane‘s Identifying and Meeting the Needs of Self-represented Litigants, a trio of papers published by the Canadian Research Institute on Law and the Family on the views of Alberta judges and family law lawyers, and a report by the Canadian Research Institute on Law and the Family with professors Nicholas Bala and Rachel Birnbaum (in press) on the results of a national survey of judges and lawyers. Although this research doesn’t necessarily label it as such, I’ve noticed that there’s a bit of a slippery slope effect to litigating without counsel, in which the decision to self-represent, whether a choice was involved or not, seems to trigger a cascade of adverse effects that ultimately result in litigants without counsel achieving worse results in every major area of family law than would have been achieved with counsel. Continue reading →

A Smart Decision – Access to Counsel for the Poor and Disabled in a Legal Aid Crisis

By: Sarah Burton

PDF Version: A Smart Decision – Access to Counsel for the Poor and Disabled in a Legal Aid Crisis

Case commented on: R v Smart, 2014 ABPC 175

Access to justice advocates should to take a few moments to review R v Smart, 2014 ABPC 175, where the Honourable Assistant Chief Judge Anderson stayed proceedings against three accused persons who could not afford counsel, but did not qualify for Legal Aid. While such applications are not uncommon, the evidence considered in Smart extends far beyond the norm. This extensive evidence, coupled with Judge Anderson’s probing commentary on access to justice, places a welcomed spotlight on Alberta’s Legal Aid funding crisis. In Smart, Judge Anderson sought to provide concrete guidance to courts facing similar applications. While he accomplished this task, his engagement with access to justice issues may be the more lasting legacy of the judgment.

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