A Family Lawyer’s Role is (Not) to Minimize Conflict

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Do family law lawyers have an obligation to minimize conflict? It seems obvious that given the stakes involved in family law matters, especially where there is family violence or children, that a lawyer’s role ought to include minimizing conflict; however, that idea is not as straightforward as it sounds. A family lawyer does have an obligation to advise her client on the impact of actions that inflate conflict; but a lawyer’s role properly understood, does not include an objective of minimizing conflict. This may seem like splitting hairs, but it is an important distinction.

Minimizing Conflict

The BC Family Law Act, SBC 2011, c 25 (BC FLA), Rules of Court, and guidance from the BC Law Society all aim to ensure family law proceedings minimize conflict. The BC FLA requires a court to “ensure that a proceeding under this Act is conducted in a manner that strives to minimize conflict, and if appropriate, promote cooperation, by the parties” (s 199(1)(b)(i)). An object of the BC Supreme Court Family Rules, BC Reg 169/2009 is to “help parties resolve the legal issues … in a way that will minimize conflict and promote cooperation between the parties” (R 1-3(1)(a)(ii)).

As an aside, the more time I spend with the BC FLA, the more I admire it. It really is a remarkable piece of legislation in the way it tries to guide families towards a less conflictual resolution to their dispute. The Act encourages parties to make their own decisions, and it aims for them to do so in a way that is less conflictual, responsive to family violence, and mindful of children’s interests. That said, Susan Boyd and Ruben Lindy found that BC courts are still relying on “problematic assumptions about family violence”, indicating that judicial and legal education is still falling short of effectively training the legal profession about family violence (see here at 45).

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Supreme Court of Canada Finally Addresses Racial Profiling by Police

By: Meryl Friedland

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Cases Commented On: R v Le, 2019 SCC 34 (CanLII); R v Ahmad, 2020 SCC 11 (CanLII)

Nine minutes. This is the length of time that a police officer pressed a knee to the neck of George Floyd in the United States, while he lay on the ground immobilized, pleading, stating he couldn’t breathe. Nine minutes is a shockingly long time for Constable Chauvin to have exerted deadly force on a human being whom he had already rendered vulnerable. He could only do this without interference because of the power provided to him by the state. He could only do this because violent race-based state conduct is nothing new – far from it.

Our current Canadian protests expose the local experience of abusive and racist police tactics, both systemic and overt, against Black, Indigenous, and other racialized Canadians. These protests and the action urged by them have the potential to mobilize and enact change. The criminal justice system is reactionary, but it can still send a message denouncing unlawful conduct with the aim of preventing it from recurring. Recently, the Supreme Court of Canada has given us new tools in this fight, by addressing racial profiling twice in the past year in R v Le, 2019 SCC 34 (CanLII) and R v Ahmad, 2020 SCC 11 (CanLII). It has taken an exceptionally long time for our highest court to give us these tools. Although these judgments are a start, unquestionably there is still much work to be done, both in and out of the courts.

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The Fair Deal Panel Report – and the British North America Act?

By: Nigel Bankes

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Report Commented On: Fair Deal Panel, Report to Government, May 2020

The Kenney government has now released the Report of the Fair Deal Panel. It is not a good read. Many sections are poorly written and poorly reasoned. But since ABlawg is a blog on legal developments, let’s start with the title to this post and the decision of the authors to refer to Canada’s founding constitutional document as the British North America Act (BNA Act) of 1867.

While the authors concede (at 13) that the BNA Act is also known as the Constitution Act, 1867, they consistently refer to the BNA Act throughout the report. This is simply wrong, and it has been wrong since 1982 when Canada adopted the Constitution Act, 1982. That Act includes a Schedule entitled “Modernization of the Constitution” (emphasis added) which serves to rename elements of the Constitution. In particular, item 1 in the Schedule renames the BNA Act of 1867 the Constitution Act, 1867. It repeals the title to the old BNA Act.

This may seem, especially to non-lawyers, a relatively trivial point (perhaps the Panel members just made an elementary mistake, despite having two lawyers on the Panel), but perhaps there is something deeper going on. Perhaps the Panel, consciously or unconsciously, is hearkening back to the “golden” days of Empire and reaffirming the institution of the Monarchy; or perhaps the Panel is somehow questioning the legitimacy of the patriation of the Constitution and its (Pierre) Trudeau Charter? But none of that makes any sense. As the statue topplers remind us, there was nothing especially golden about the Empire, and there is one element of the 1982 constitutional package that Alberta continues to rely on heavily. That is the addition of section 92A, the resources amendment, to the Constitution Act, 1982. That amendment afforded the provinces greater powers over the regulation of oil and gas, electricity, and other natural resources.

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Oil and Gas Consortium Intervenes in the Jurisdictional Challenge to the Alberta Inquiry into Anti-Alberta Energy Campaigns

By: Shaun Fluker

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Case Commented On: Ecojustice Canada Society v Alberta, 2020 ABQB 364 (CanLII)

In July 2019, the Lieutenant Governor in Council commissioned the Allan Inquiry with Order in Council OC 125/2019, issued under section 2 of the Public Inquiries Act, RSA 2000, c P-39. The Order in Council directs Commissioner Steve Allan to investigate and report on any anti-Alberta energy campaigns that are supported, in whole or in part, by foreign organizations. Several ABlawg posts have been critical of the Allan Inquiry, commenting on its mandate, process, interference with the freedom of expression protected by the Charter, and lack of transparency. Ecojustice has brought an application for judicial review seeking an order quashing Order in Council 125/2019 and prohibiting the Allan Inquiry from proceeding. This post comments on a decision by Justice Karen M. Horner granting an application made by an “Industry Consortium” for leave to intervene in this proceeding.

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eQuestioning: Oral Questioning in Litigation in the Era of Social Distancing

By: Gideon Christian

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In adversarial litigation, oral questioning is an out-of-court pre-trial or pre-hearing proceeding where a party to litigation orally examines (by way of questioning) under oath another party adverse in interest, or their agents, for the purpose of adducing information that may be used as evidence. In the Alberta Rules of Court, Alta Reg 124/2010 (Alberta ROC), oral questioning can take the form of questioning for discovery (Rules 5.17 and 5.22) or questioning on application (Rules 6.7 and 6.8). Before the COVID-19 crisis and its social-distancing requirements, the default method of oral questioning in civil litigation was in person, with the parties and their lawyers present at a physical location accessible to all, such as the lawyer’s office or some other location chosen by the parties. A certified court reporter must also be present, who swears the witnesses and also takes record of the ‘question and answer’ proceeding.

The COVID-19 pandemic has resulted in public health and judicial directives enforcing isolation and social-distancing rules. Consequentially, in-person questioning became impractical on public health grounds. Although the justice system was substantially paralysed by the pandemic, litigation must go on even in that state of paralysis. In response to the realities imposed on the justice system, in-person oral questioning gave way to virtual or remote questioning using audio- or video-conferencing technologies. This method of questioning is what I refer to in this post as eQuestioning (short for electronic questioning).

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