Category Archives: Family

Family Justice 3.5: Fostering a Settlement-Oriented Legal Culture

By: John-Paul Boyd

PDF Version: Family Justice 3.5: Fostering a Settlement-Oriented Legal Culture

This is the note on rethinking our approach to family justice that I never thought I’d find myself writing, and as a result I need to begin with an explanation and an apology. In this short post, I describe what I see as lawyers’ duties to promote settlement, to respect informed compromise and to refrain from litigating family law disputes without good and sufficient reason. First, however, I’ll explain the circumstances that have provoked me to write.

I’m involved in a number of the present efforts to reform family justice. In one particular group, I have received a certain amount of kickback when I suggest that lawyers should play a larger role at the front end of family law disputes, in order to steer as many of those disputes away from court as possible. (Well, perhaps not kickback so much as dismay.) I would invariably respond that the early involvement of lawyers would result in the parties receiving an explanation of the law and the range of likely outcomes, thereby minimizing unreasonable positions and moving the parties toward settlement, as I have described elsewhere. Although this struck me as self-evident, it is not.

Continue reading →

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.

Continue reading →

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.

Continue reading →

Expert Reports: Are They Inherently Material Evidence?

By: Camille Sehn

PDF Version: Expert Reports: Are They Inherently Material Evidence?

Case Commented On: E.G. v Alberta (Child, Youth and Family Enhancement Act, Director), 2014 ABCA 396

This summer I posted a comment on a successful application to stay the Queen’s Bench decision of the Honorable Mr. Justice G.C. Hawco, which reversed a Permanent Guardianship Order (“PGO”) made by the Provincial Court at trial. On the hearing of the appeal of the Director of Child and Family Services (“the Director”) of Justice Hawco’s decision, there were several issues raised surrounding the expert reports that were entered as evidence at trial and relied upon in Justice Hawco’s decision, but not relied upon in the trial decision of the Honorable Judge L.T.L. Cook-Stanhope. This post will comment upon the Court of Appeal (Justices Côté, Rowbotham and Jeffrey) decision on those issues.

Facts

The background to the appeal is outlined in greater detail in the decision and my earlier post, but it is important to highlight several important developments within the case which began at trial. There were two reports entered as evidence by counsel for the parents, the reports of Ms. Debra Harland and Dr. Sonya Vellet, which were then withdrawn during trial. The authors of these reports were not called as witnesses, therefore not available for cross-examination, and counsel for the parents confirmed to Judge Cook-Stanhope that the parents were not intending to rely on them.

Continue reading →

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.

Continue reading →