1 Let’s Act on What We Know ................................................................10

1.1 Our Current System Often Fails Families...................................10

1.2 Conflict is Harmful to Children ..................................................11

1.3 Still, Our Justice System Steers Families to Court .....................11

1.4 Defining the "Family Justice System"........................................12

child protection cases..................................................................12

1.5 Why has Change been so Slow? .................................................12

1.6 Now is the Time to Act...............................................................13

2 The Working Group and Its Project ......................................................15

2.1 Members .....................................................................................15

2.2 Mandate and Principles...............................................................16

2.3 Sources........................................................................................16

2.4 Recent Innovations .....................................................................18

2.5 The Family Justice System Matters ............................................19

3 Information, Assessment and Referral ..................................................23

3.1 A Family Justice Information Hub .............................................23

Supreme Court Self Help Information Centre (SHIC). ..............25

3.2 The Information People Need.....................................................26

3.3 How Information can be Delivered.............................................27

3.4 Information must be Coherent and Accessible ...........................31

plain language .............................................................................31

reaching remote communities .....................................................31

3.5 Meeting the Needs of Aboriginal Communities .........................32

3.6 A Family Justice Assessment Service ........................................34

needs assessment is critical.........................................................34

providing assessment services throughout BC ...........................35

assessment services and immigrant women................................35

assessment as a gateway .............................................................36

3.7 Referral Networks are Key to Integrated Service.......................37

4 Consensual Dispute Resolution.............................................................39

4.1 Changing Expectations ...............................................................39

4.2 Definitions ..................................................................................40

4.3 Family Violence, Power Imbalance and Gender ........................41

family violence and CDR............................................................42

4.4 Mandatory Participation in CDR ................................................42

4.5 A Range of CDR Options ...........................................................45

4.6 Complying with the Mandatory Requirement ............................46

4.7 Assessment..................................................................................47

exemptions ..................................................................................48

4.8 Practice Standards and Quality Control......................................49

4.9 Making CDR Accessible ............................................................50

4.10 Access to Legal Advice in Support of CDR ...............................51

4.11 Children and CDR.......................................................................51

5 Rules, Procedures and Hearings............................................................53

5.1 Tailoring Processes to Families’ Needs......................................53

proposed rule changes.................................................................55

financial disclosure forms...........................................................61

5.2 Using Technology to Enhance Access........................................62

automatic forms generation.........................................................62

auto orders...................................................................................63

court attendance by telephone and videoconference ..................64

a single set of rules......................................................................64

5.3 The Conduct of Hearings ............................................................65

child participation in family court ..............................................68

5.4 Court fees ....................................................................................69

5.5 Court costs ..................................................................................70

offers to settle..............................................................................71

5.6 Working with Orders and Agreements .......................................71

high conflict families ..................................................................72

access issues................................................................................74

helping people meet their support obligations............................75

5.7 Legislative Changes are Needed.................................................77

preserving limitation periods ......................................................78

defining the "triggering event" ...................................................79

variation of separation agreements .............................................80

family violence and "best interests" ...........................................81

6 Family Court Structure..........................................................................82

6.1 The Court and the Family Justice System ..................................82

our existing family court structure................................................82

6.2 Moving to a Single Court for Family Law .................................84

6.3 Section 96 and Family Justice Reform .......................................86

6.4 A Superior Court UFC................................................................87

implementing the superior court model in BC............................89

youth criminal justice and child protection cases .......................93

6.5 Full Provincial Court Jurisdiction...............................................94

6.6 Coordinated Jurisdiction .............................................................97

judicial resources ......................................................................100

7 Judges and Lawyers and Family Justice..............................................103

7.1 Judges: Qualifications, Training, Specialization ......................103

7.2 Lawyers’ Changing Roles.........................................................105

building on the momentum .......................................................106

ethical rules need to evolve.......................................................107

"unbundled services" ................................................................107

8 Implementing and Evaluating Reforms...............................................110

9 Conclusion...........................................................................................111

10 Recommendations ...............................................................................112

11 Bibliography........................................................................................122

Family law affects us all. If we have not been directly involved in a family

break-up, we have a friend or family member who has. Experience tells us

that these are emotional events, and that the answers to the real issues families

face often are not found in the law.

The Family Justice Reform Working Group was asked to explore opportunities for

fundamental reform of British Columbia’s family justice system, building on its

strengths to better meet the needs of today’s separating and divorcing families.

We were asked to use the many reports and studies that have been done in BC

and elsewhere over the past three decades as the basis of a plan for change.

When we looked at those reports we were struck by the consistency of their

messages. Over and over we read that the adversarial system was not designed

for family law cases and, for too many families, it does not work well. What

families need is help to find better ways to communicate and to work out the

arrangements that work best for them.

Past reports have consistently recommended that family cases not be treated

as potential trials but be managed through processes designed to address the

relationship issues and underlying emotions that actually drive family conflict.

They say that it would be best for people to retain more control over the

decisions that will shape their lives.

It is true that there have been innovations in family law, and there are now

more alternatives to litigation. Still, mediation, collaborative law, settlement

conferences and parent education programs—all worthy and welcome—have

been add-ons to what remains a fundamentally adversarial framework. That

framework makes a difficult situation worse by defining spouses as

adversaries and disagreements as contests to be won or lost. It encourages

attitudes and behaviours that do not serve families well.

We do not intend to undersell or overlook the extensive and impressive efforts

made over the last several years by lawyers, judges, policy makers, court

administrators and community services to reform family law in BC.

There is no question that a good deal has been accomplished already, but now

is the time to take bold steps forward along the course that has been set,

towards the goal of a justice system that is fundamentally different from what

we have known in the past—one that is actually designed for families.

The groundwork has been laid. Now we need to do what the experts have

been recommending and move family law away from the adversarial

framework.

We propose a family justice system where mediation and other consensual

processes are not considered "alternative dispute resolution," but are the

norm. Just as they did before break-up, families will bear the primary

responsibility for making their own arrangements, with the benefit of all the

tools that the new family justice system will offer. In the family justice system

we propose:

all aspects of family law and family dispute resolution. Located on the

internet and in communities throughout BC, often in the courthouse, this is

where people will go to learn about their rights and obligations and about

the options available to them, and be referred to the services they need.

participate in at least one mediation session, to try to resolve their issues,

and that first session will be free.

another consensual dispute resolution process might be appropriate.

the expected means of resolving family disputes. Lawyers will play an

important role in helping clients choose the most appropriate dispute

resolution process from the available options.

expert in family law and committed to a new way of thinking about the

resolution of family law disputes.

rules will be simplified; and hearings will be informal.

The courts cannot and should not be removed from the family justice

system—trial is necessary and valuable for resolving truly intractable

disputes, for clarifying the legal principles upon which negotiated settlements

are based, and for enforcing obligations arising out of separation. The

principles of family law, as set out in statutes and developed through judicial

decisions are the framework within which families can develop the solutions

that fit their particular circumstances and we do not suggest that this should

change.

However, we do say that the family justice system should be founded not on

the values of an adversarial process, but on the values of family autonomy,

cooperation and the best interests of children. This shift has already begun.

Family case conferences in the Provincial Court, judicial case conferences in

the Supreme Court, mediation, and collaborative law in the private sector are

all evidence of a trend. We propose to extend and accelerate these

developments and to incorporate cooperative values even more deeply into the

family justice system, particularly at its "front end."

In Part One of our report we set the stage for our recommendations, describe

our mandate and the composition of our Working Group, and tell how we set

about accomplishing our task.

In Part Two, beginning with Chapter 3, we make and discuss our

recommendations for change, in 5 chapters.

Chapter 3 describes the front end of our proposed family justice system and

says that it is here that resources should be focussed. Families find the justice

system complicated and confusing. Confusion can heighten and prolong

conflict, especially for the increasing number of people who do not have legal

representation. Information is a dispute resolution tool, and should be

provided through an accessible single point of entry. The entry point we

propose is the Family Justice Information Hub. This would be the front door

to the family justice system; the coordination point for local services for

families, for legal information and advice, for assessments, and referrals. The

Hub would also be available over the internet, and by telephone.

Chapter 4 proposes a shift from a subsidized litigation system to a subsidized

settlement system. This involves a change not only in programs and services,

but in how people think about family dispute resolution. The reality is that the

vast majority of family cases settle without a trial: we recommend that the

family justice system reflect this reality and promote consensual settlements

that are timely and enduring and arrived at in a way that minimizes expense

and harmful conflict. Recognizing the need to allow for cases where violence

or power imbalance precludes it, we recommend mandatory participation in at

least one mediation session for most cases, before they go to court. To

reinforce societal support for this new approach to resolution, we recommend

that the first mediation session should be free for everyone.

Chapter 5 describes a simpler approach for cases that do need to go to court.

Forms would be of the "check box" and "fill-in-the-blanks" variety. Forms

such as the financial disclosure form would be generated automatically,

online, from responses to a series of simple questions. Court procedures

would be simplified and streamlined, designed to work towards resolution.

Hearings would be less formal and would be actively managed by the judge.

Chapter 6 examines court structure and unified family court (UFC). In British

Columbia we now have two parallel court systems hearing family cases. We

recommend a single court, with authority over all areas of family law, with

specialist judges and simplified procedures. Whether this proposal is accepted

or not, we recommend that adjudication of family cases be available within a

network of extensive services to support families, and with a focus on

cooperative resolution. In our report we explore three possible models for

achieving this single court.

provinces, which moves all family matters to the superior courts. We

recommend this model but only if adequate funding is assured. Experience

in other provinces causes us to be concerned that funding might not be

sufficient to provide the necessary level of services and the province wide

implementation necessary to improve on the existing system.

judges the same family law jurisdiction as Supreme Court judges. This

solves the split jurisdiction problem almost entirely within the context of

the existing judicial structure and preserves the flexibility and province

wide accessibility of the current system. While attractive from a practical

standpoint, this approach is precluded at this time by an array of

giving jurisdiction over divorce or matrimonial property to a provincially

appointed judge. If the superior court approach proves unworkable, it may

be worth taking a further look at this option.

Columbia consider a coordinated jurisdiction approach. Not actually a

unified court model; it leaves the two existing courts in place while better

integrating and coordinating their family law work. It has been considered

before in BC. One approach would involve appointing Provincial Court

judges as Masters of the Supreme Court and giving them as much family

law jurisdiction as constitutionally possible. It is potentially complicated

and inefficient but warrants further consideration if the problems of split

jurisdiction cannot be resolved otherwise.

Finally, in Chapter 7, we conclude that changing the culture of family law

involves more than just changes to services, procedures, legislation and court

structure. It also involves people. Family law is distinct from other areas of

law and the lawyers and judges working in this area must adopt roles,

functions and values that are compatible with the needs of families. Lawyers,

clients and courts are already beginning to see their relationships and

responsibilities in new ways. We suggest ways that the courts can

accommodate the unique demands of family law, and steps that the Law

Society, Bar Association, law schools, and Continuing Legal Education

Society can take to support the work of lawyers in this evolving field.

This is a report to the Justice Review Task Force. We understand that the

Task Force will now offer those who work within our family justice system—

judges, lawyers, mediators, and others—and the families who rely on it, an

opportunity to respond to the ideas and recommendations in this report.

Family law presents enormous challenges. Disputes arising out of family

breakdown are as complicated and emotionally charged as they are common.

If we have not experienced family breakdown personally, we certainly have

friends or family who have.

When a family is together, we let its members take care of each other and we

assume that the family can solve its own problems. Unless someone behaves

criminally or puts children at risk, we treat the family as an autonomous unit.

But when spouses separate, new assumptions take over. Our family justice

system is based on assumptions that might strike us as odd if we were not so

accustomed to them: that a family’s issues are best resolved by strangers; that

family members should consider themselves adversaries; and that

interpersonal problems should be understood in terms of competing rights.

In fact, few people really believe anymore that a court of law is the best place

for separating spouses to resolve their arguments, or that a judge is in the best

position to decide whether the children will spend weekends with one parent

or the other. Reports, surveys, and research papers keep telling us the same

issues that arise from family break-up; and

responsibility for creating their own solutions.

The system we make available to them today is complicated, intimidating and

costs a great deal of money just when the family’s income is being stretched

beyond its limits. Increasing numbers of people find themselves forced, by

financial circumstances, to make their way without legal representation

through a process designed for lawyers. A small number of these people go to

trial on their own. Many settle, whether or not they have the information and

support they need; some walk away, their conflict unresolved and possibly

giving up what they need or were entitled to. Others never approach the

family justice system in the first place, seeing it as inaccessible, unaffordable

and unresponsive to their circumstances.

It is true that some people who use the court system to resolve their family

law issues are satisfied with the result. It is also true that lawyers successfully

negotiate agreements on behalf of their clients every day. For some of these

clients, under our proposals, little may change.

What we hope will change is that families will find in the family justice system

the information, support and services they need to take more responsibility for

the decisions that best meet their own unique needs. We do not pretend that

family break-up can be made easy. Separating families will always face

enormous challenges. But we believe the family justice system can serve them

better.

Study after study tells us with certainty that exposure to conflict, and the

emotional well-being of the primary parent, make a big difference to

children’s ability to adjust in a healthy way to family break-up.

Knowing this, we must not offer as a first resort for separating families an

adversarial system that by its very nature often heightens conflict and

example, that the language of affidavits—a primary tool of custody

litigation—can encourage parents to depersonalize each other and cast each

other in the role of the enemy. Instead of supporting a shared understanding of

a parenting problem and a cooperative attempt at resolution, legal procedures

can be used to lay blame and cause lasting hurt.

We apparently acknowledge the shortcomings of the current system and the

merits of consensual processes for families in conflict, but still people are

steered to the courthouse. Mediation is certainly more widely available than it

was a few years ago but still is characterized as an "alternative" process.

We frame family disputes as contests and we manage cases as if they will all

go to trial, even though most never will. This means that the tools available to

families who need to work towards settlement are those that were designed as

preparation for court.

One of the reasons why the courtroom remains, for most people, the primary

of Arts thesis).

get a divorce, people must apply to court; to preserve support and property

rights, people must start a legal action. It can be said that, to a large extent,

our family justice model is one of "legislated litigation."

We use the term "family justice system" broadly. We refer to a system that

serves separating and divorcing couples, both legally married and common

law, as well as families involved in child protection matters. Beyond the laws

that govern family relationships, our "family justice system" includes:

arising out of separation, divorce or child protection;

Services Society (LSS); and

counsellors who work in these areas.

In fact, the term "system" is somewhat misleading, implying a level of

coordination and cooperation that does not exist. This lack of coordination of

services undermines their efficiency and utility and is addressed in the

proposals that follow.

Child protection cases—in which decisions are made to ensure the safety of

children, including whether children should continue to live with their

families—are very much a part of our family justice system. In British

much of our law about the protection of children at risk. These cases are heard

by the Provincial Court under procedures designed especially for them.

The conclusions we draw in this report about the need for change in our

family justice system apply as much to child protection cases as to any others.

We often refer to separation and divorce, but throughout we regard child

protection cases as an integral part of our family justice system.

We recognize that these cases do have certain unique characteristics and

dynamics but we make our argument for the importance of good information

and assessment services, and the advantages of consensual dispute resolution

processes just as forcefully for these child protection matters as for cases of

separation and divorce.

With so many convincing past reports pointing in the same direction, why has

BC’s family justice system been so slow to change?

priority in the courts," and it remains today the poor cousin in the justice

system. Criminal justice, with its public safety issues, easily attracts the

interest of law makers and voters. Commercial and personal injury cases have

repeat users including insurers, financial institutions and corporations that can

press for reform. There is no such natural lobby group for family justice

reform, no urgent claim on public attention and probably little political payoff

to be earned. Still, it is the right thing to do.

Lawyers, and the network of service providers working with families,

including mediators, psychologists, social workers and counsellors, need to

use their communication and advocacy skills to educate the public, and

legislators, about the importance of family law, and champion the cause of

reform of our family justice system.

The fundamental thesis of this report is that the family justice system has not

yet responded fully to the advice that so many have offered. Innovations such

as mediation, collaborative law, settlement conferences and parent education

programs—all worthy and welcome—have been add-ons to what is still,

essentially, an adversarial format.

Now is the time to take the next logical step. The innovations we have noted

give us a firm foundation for moving ahead to do what the experts have long

recommended and replace the family justice system’s adversarial framework

with a comprehensive dispute resolution system for families.

We propose a greater public investment in mediation and other services, and a

requirement that nearly all families try these services before resorting to

litigation. As a society, we say that we value family autonomy and peaceful

resolution of disputes. We need to reflect those values in our family justice

system and our spending priorities. Public money that now subsidizes the

court system should be reallocated towards consensual dispute resolution so

that more appropriate processes are affordable to all families.

There will always be some cases for which litigation and trial are appropriate.

Some disputes are simply intractable, some individuals are uncompromising,

and sometimes an issue of law needs to be clarified. Physical violence and

other forms of abuse, or a power imbalance, mean that unless sufficient

protections can be put in place, consensual dispute resolution processes may

not be appropriate, and negotiation through counsel or litigation may be

indicated. The general rule however should be that trials are reserved for those

cases that, for good reason, need a resolution by a judge.

Ministry of Attorney General of British Columbia, 1992.

What we propose is an approach that would probably seem obvious if we

were starting from scratch to design a family justice system today. It would:

responsibilities to each other and to their children, based on information

about the relevant principles of family law and advice about their particular

situation;

including protection for adults and children at risk;

to go to court, with judges who are expert in family law and sensitive to the

emotional and economic issues that separating families face and with

procedures as simple and informal as possible, always proportionate to

what is at stake.

Of course we are not designing a new system from scratch. We have an array

of services provided by government, private sector professionals and

community agencies, which are not always delivered in a coordinated way.

Not all services are available everywhere, and not all are available to

everyone who needs them. We have two parallel court systems handling

family cases under two quite different sets of rules and procedures.

Our recommendations take this reality into account but describe a system that

reflects our ideals. We describe what needs to be done, without always being

specific about who should fulfill each function. That will be a task for those

who are charged with implementation and we encourage them to be creative

in determining the skills and expertise required in each case, and where best to

find them.

We understood our terms of reference to direct us to be realistic, but not

unduly fettered by cost considerations. The cost of some of our recommended

innovations can be met by shifting resources from the court system, which

will need to handle fewer cases and will gain in efficiency if the family

jurisdictions of our two court systems are unified. We have framed our

recommendations to allow for implementation in stages, if circumstances and

resources require, but there must be an implementation plan, with realistic

timelines for realization of the redesigned system. The planning should start

now.

The Family Justice Reform Working Group was appointed in the summer of

2003 by the Justice Review Task Force. The Justice Review Task Force is an

ongoing collaboration among government, the courts and lawyers, working

together to help make the justice system more responsive, accessible and costeffective.

Established on the initiative of the Law Society of BC in March

2002, its members include the Chief Justice of the BC Supreme Court; the

Chief Judge of the BC Provincial Court; and representatives of the Law

Society of BC, the Canadian Bar Association, and the Ministry of Attorney

General. Early in its mandate, the Task Force identified family law as a

priority area for reform and appointed to this Working Group, people who

have long experience in family law from many different perspectives.

The Hon. Madam Justice Alison Beames

The Hon. Associate Chief Judge James Threlfall

Richard Bjarnason

Nancy Cameron

Jill Dempster

Dinyar Marzban, QC

Heidi Mason

M. Jerry McHale, QC (Chair)

Carole McKnight

Mary Mouat

Irene Robertson

This Working Group was asked to propose fundamental and cost-effective

change to BC’s family justice system. Much good work has been done in

recent years to study and improve various aspects of family justice in this

Province. Our mandate was not to go over the same ground, but to build on

those studies and reports and design a coherent system to deliver the services

people need. We were asked to consider the concept of a unified family court

and other models for organizing BC’s family justice system and to

recommend the best possible model for British Columbia. At the core of our

mandate was the instruction to recommend the design of a family justice

system that will:

needs of professionals

enhancing non-adversarial settlement processes, and supporting trials as an

appropriate recourse only when other means are not appropriate or

effective.

Our focus has been on reforms that will enhance accessibility, effectiveness

and integration of services. In this report we use these words as follows:

available within a reasonable time and distance, and presented in plain

language.

needs; that services promote timely, fair and lasting resolution of disputes,

and that they foster functional family relationships after separation and

divorce.

those services so users can move easily from one service to another as

appropriate. It means that providers of family justice services share

common objectives and cooperate in planning and delivering those

services; and it means that related services share common values and

priorities, and their policies and procedures are consistent and coherent.

Our Terms of Reference directed us to build on previous reports and papers

that have analysed the BC family justice system. We had much material to

work with, including 16 earlier reports on the BC family justice system, and a

multitude of reports on family law reform from other jurisdictions,

particularly Australia and Great Britain. In addition, we had the benefit of

research reports published more recently in BC. Academic papers addressing

dispute resolution issues generally were also a useful source of commentary

and ideas. For a complete list of resources referred to in the preparation of this

report, see the Bibliography at the end of this report.

Public consultations were beyond our mandate. Consultations would have

added considerably to the time required to produce this report and would not

have added appreciably to the information needed to write it. Between the

federal and provincial governments there has been thirty years of consultation,

research and academic inquiry into the questions we were asked to address.

workshops held in 13 BC communities and meetings with 266 people

representing all family court user and interest groups. The joint federalprovincial-

(Fall 2001) was based on nationwide consultations through 2300 feedback

booklets, 71 written submissions and 46 workshops.

Our thinking has been informed by the richness of the contributions to these

and many other earlier reports, both by professionals in the system and by the

people who have used it. We did commission research on a number of specific

issues where it was needed. Those studies and the material on hand proved a

more than adequate information base.

Our conclusion was that the concerns people have with the system and the

directions family law needs to take are already well articulated; actually

accomplishing change is the larger issue.

Not surprisingly, common themes emerge from past reports:

charged issues facing separating families: litigation can be prolonged,

expensive and focused on parents’ rights rather than children’s best

interests;

separating parents are recommended, with special consideration if family

violence is a factor;

needed; and

particular needs for better access to family justice services.

We take these ideas, so consistently asserted in the last 30 years, to be

self-evident. In fact, since 1995 an impressive number of

recommendations and innovations have been implemented:

additional communities. These mediators are all trained and certified to

national standards.

attendance is mandatory before an appearance in Provincial Court.

province.

clients that they will work towards settlement, not litigation. If either party

begins contested litigation, the lawyers must resign from the case.

for parents and social workers when there is disagreement about the care of

a child; qualified mediators chosen from a roster provide this service

throughout the province; family group conferences and judicial case

conferences are also widely used to resolve child protection issues.

Court locations in BC and will be available in most Supreme Court

locations by summer 2005, to give advice to people with family law

problems or child protection issues; they can also speak in court on behalf

of people who cannot afford lawyers.

through LSS and Ministry of Attorney General toll free telephone lines and

websites.

promote the early settlement of cases, and in most cases it is mandatory to

meet with a judge before a contested hearing can be held.

an assessment interview with a Family Justice Counsellor before a first

family court appearance. A Family Justice Counsellor assesses the case and

refers parties to appropriate dispute resolutions services. In addition to

assessment by a Family Justice Counsellor, the services of a child support

officer, a Family Maintenance Enforcement Program (FMEP) outreach

worker, an advice lawyer and family duty counsel are available.

administrative, rather than court enforcement of child support.

The record is encouraging, and it reflects a deliberate and commendable

strategy to reform family law and make it more responsive to families. With

these innovations in place, we now have the foundation for a cohesive

approach to reform that will fully realize the vision flowing from the earlier

reports and from the understanding that has been reached in the last two

decades about how to best resolve family law disputes.

What also has become clear is that there are compelling reasons why we need

a strong and viable network of family justice services. We are all affected:

more than 40% of married couples in BC can expect to divorce before their

common law relationships and child protection cases also bring British

Columbians into the family justice system.

We all need to care about how well our justice system addresses the needs of

so many of us. For most of us, when we come to the family justice system, it

is a time of emotional turmoil. There is potential for power imbalance, abuse

and exploitation. There are many demands on energy, attention and finances

at the time of family break-up, so families need a justice system that is as

accessible, and as simple and as affordable as possible. It should promote the

health and safety of children and adults and focus on helping to find solutions

that work for families.

We propose an approach to family justice that gives family members the

information they need; helps them to assess their situation and choose among

options; and provides dispute resolution processes so that they can arrive at

agreements that meet their family’s needs. When necessary, a judge will be

available to adjudicate, but usually not until there has been an attempt at

consensual resolution.

We base our proposal on two assumptions:

should take responsibility for resolving disputes over money and

property and over parenting issues, whether these be between parents, or

between parents and public authorities.

from one household to two, or from one legal relationship to another.

The cornerstone of our proposal is a central source of information, assessment

and referrals—a Family Justice Information Hub. This Hub will be available

to all British Columbians, whether in their communities, over the telephone,

or on the internet. From there, people will be directed to the services they

need.

This means a fundamental shift of resources and services to the "front end" of

the family justice system, to provide coordination and support for the broad

range of services now being provided in the public and private sectors, as well

as for enhanced access to consensual dispute resolution processes. Public

subsidy needs to be refocussed so that less is spent on litigation and more on

those dispute resolution processes that encourage families to take

responsibility for their own arrangements, while offering safeguards for adults

and children who may be at risk. This is a realistic expectation if a large

number of cases can be kept out of court and if the courts can operate more

efficiently in handling the family cases that need it.

We propose moving from a court-focussed system to one where the court plays

an important role but is just one option among several and almost never the first.

For cases that do need adjudication by a judge, we propose a single court,

with judges and staff who understand not only the law but the dynamics of

family relationships, and who are committed to the goals of family justice.

But whether or not a single court for family cases is adopted in British

Columbia, our other recommendations apply. Whether or not there is a single

court for family cases, court procedures need to be specially designed, with

simplified rules and forms to make legal representation more affordable and to

accommodate those who do not have the benefit of a lawyer.

In this report we will deal with each of these areas in turn:

Family Justice Information Hub)

As illustrated by the graphic below, the first of these components is the one

that underlies and supports the others. Information, assessment and referral

logically come first—no one can act effectively without appropriate

information—but they must continue to be available at any time, as people

progress towards resolution.

Most disputes will be resolved through consensual processes. A judge will be

called on in relatively few cases, and normally after other options have been

exhausted. In only a few cases should a court be the first and perhaps only resort.

This is the "front end" of the family justice system, where our energies and

resources have the most potential for producing positive results. The

recommendations we make here will cost money, some of which will come

from reallocation of resources now required by our two court systems, and

some of which will be new money. We cannot guarantee that money spent

here, at the front end, will reap cost savings for the justice system, but we are

confident that minimizing family conflict will benefit our health, education

and social systems and reduce the emotional and financial toll on families.

The key to our proposal is a Family Justice Information Hub. This is where

families across the province would know they could turn for access to an array

of information and services. Just as everyone knows to dial 411 for directory

assistance, British Columbians would come to know this Hub as the place to

go when they need help or information about a family law issue.

The Family Justice Information Hub would provide general information about

the family justice system, as well as case specific information, advice and

referrals.

The Family Justice Information Hub should have a physical presence in as

many communities as possible. The courthouse is often a convenient location,

with good access by public transit and recognized by most people as a safe

place.

The Hub is where people will phone or visit to:

For people who cannot easily get to a Hub, or who prefer to obtain services

online, a virtual door to the Hub will be available over the internet and at

dedicated family justice computer kiosks located in convenient locations in

the community. The kiosks we envision would use touch-screen technology to

convey information in a variety of formats including text, audio and video.

They could be stand-alone units, placed in libraries and anywhere else where

people can have free access to them. They could also be used in courthouses

or in Hub locations, to supplement other information services. They could

incorporate pamphlet racks, providing take-away materials as well.

The principal functions of the Family Justice Information Hub are:

1. Information: People who are facing a family break-up or whose children

are at risk need information to help them plan for the future. Information

can lessen fear, conflict and distrust, and minimize the expense of

working out solutions. Appropriate and timely information gives people

options and some measure of control over the process.

2. Assessment and referral: Once family members have an information

base, they will often need help from other professionals. A qualified

person working with them to assess their needs can make sure they are

pointed in the right direction. For example, the assessor could meet with

one or more family members to discuss whether the situation is suitable

for CDR and if so, which of the various dispute resolution options

available in the community would be most appropriate and useful. Or,

they might be referred to a lawyer for legal advice and assistance in

pursuing either CDR or litigation.

and organizations can coordinate their services, many of which are already

being provided. A local steering committee, including representatives of the

major service providers, should have responsibility for minimizing gaps and

overlaps and ensuring that the services offered reflect the needs of their

communities. For example, steering committees should pay particular

attention to the experiences and needs of the Aboriginal communities in their

area.

Information, assessment and referral services are the most important

components of a family justice system and they merit the dedication of

significant attention and resources. In fact, many of these elements are already

in place. Particularly in the area of public legal information, BC is known for

innovation and for a depth of talent. The problem is that with so many

different sources of information British Columbians often do not know where

to turn for answers to their questions.

Families, of course, can get the information and services they need directly

from lawyers and service providers in the community. The Hub will serve as a

resource for those "contact points" so that they can be sure they are giving up

to date and consistent information about procedures and services.

BC now has 28 Family Justice Centres. These centres were created in

establishment of community family relations centres as a front door to the

family justice system. These centres provide many, but not all of the services

we envision for the Hub. They are staffed by Family Justice Counsellors who

provide information, mediation, and other services to families with custody,

access, and support issues. The centres also offer the Parenting After

Separation (PAS) program, and prepare custody and access reports for court.

However, at present, Family Justice Counsellors do not mediate property

issues, nor do they generally serve clients with Supreme Court matters. Their

clientele are generally people of modest means.

Our model of a Family Justice Information Hub incorporates features and

services presently offered through Family Justice Centres, but the Hub:

advice; and

disputes, including those now heard in both Provincial and Supreme Courts.

We propose building on the experience gained in Family Justice Centres.

Based on experience with existing family programs, we predict that outside

the Lower Mainland and large urban communities staffing of specialized

positions for assessment, referral, mediation and general advice for families,

will be challenging.

Some of the elements of the Family Justice Information Hub will be tested in

an innovative project now underway at Vancouver Law Courts. Working in

Attorney General have established BC’s first Supreme Court Self Help

Information Centre (SHIC).

The goal of the pilot project is to provide legal information, education and

referral services to unrepresented litigants who are involved in family and

general civil actions. The SHIC will give people basic help in understanding

the dispute and litigation processes and their role and responsibilities. The

project will include a resource centre from which clients will be able to access

government and non-government services including:

BC Courthouse Library Society, Pro Bono Law of BC, Community Legal Assistance Society

of BC, the People's Law School and the Canadian Forum on Civil Justice. The Federal

Department of Justice and the BC Supreme Court and Court of Appeal have also participated.

The Law Foundation of BC and the Vancouver Foundation have contributed funding. The

Ministry of Attorney General is represented by Justice Services Branch and Court Services

Branch.

advice;

process; and

A formal evaluation will assess the effectiveness of supported information and

education, including: in-person help, public access kiosks, the internet,

brochures and booklets. The evaluation will also look at possibilities for

expanding the project.

throughout British Columbia as the front door to the family justice

system, and that the Hubs:

other services, including to lawyers;

problems at any time, from the very early stages and as long as there are

issues to be resolved;

possible be physically located in or have a presence in a courthouse;

service providers and other stakeholders; and

including local community services for separating families, so as to

minimize service gaps and overlaps.

People need many different kinds of information, and they need it at different

stages. The Family Justice Information Hub must always be available to

families as they move through the process, with information that is relevant to

their needs at the time. Here, we outline generally some of the types of

information that a Hub could provide.

to identify the issues needing resolution, to understand what the justice system

can and cannot do for them, to know what their rights and obligations are, to

know what services are available to assist them and to know what options

children are affected by separation and divorce so they can help their children

educational programs are very useful to separating parents.

children to live with their families in their communities, but sometimes parents

need help to make this possible.

place to go with questions that cannot be answered by their parents, and they

mediation and collaborative law as ways to resolve disputes.

to resolve a dispute need information about how the court system works,

especially if they are not represented by a lawyer.

government agencies, community associations, professionals in private

practice, and others and how to gain access to them.

about the rights and obligations that arise on family breakdown. Only then can

they move forward towards a practical and enduring resolution of their

dispute. In addition to providing general information about laws and

procedures, the Hub would provide limited advice to clients about the law and

how it applies to their particular circumstances, as well as referral to a list of

family law lawyers.

Information of all kinds can be delivered in many different ways. We list a

few of them here.

people. In BC we have many agencies that produce excellent written

materials, including LSS, People’s Law School, Law Courts Education

Society, Canadian Bar Association BC Branch, and The Law Centre. These

agencies, through the BC Public Legal Education and Information (PLEI)

Working Group, share expertise and coordinate publications. The work of this

group deserves continued and enhanced support.

General, Policy, Planning and Legislation Branch (2000).

Bar Association BC Branch provides pre-recorded taped messages on many

family law topics; the Ministry of Attorney General Family Justice

connects callers to a lawyer who gives information and referrals and gives

legal advice to those who qualify financially.

can be maintained centrally yet provide services at an unlimited number of

locations; it is available around the clock from public places and from

people’s homes and workplaces; it can present information at the level of

detail that the user chooses; and it can present material in many formats

including text, photographs, animation, video, and voice.

Some American courts provide an internet program that automatically

generates court forms from answers to a series of simple questions, and also

provides virtual court tours by means of streaming video, and a voice-over

BC is already well served by online information about the family justice

proliferates, it can become overwhelming. An internet portal could serve as

the virtual access point for the Family Justice Information Hub. This is where

people would turn if it is not easy for them to visit a Hub location, or if they

simply prefer to use an online service. Besides providing access to content

from a variety of sources, a full-function portal would offer a menu of online

An important component of this internet portal would be an online database of

community and government services available throughout the province.

at www.cba.org/bc click on Public & Media and then on Dial-A-Law

that lead a litigant step-by-step through various procedures. The site is well-used, with 2,300

visits per month (50% of those by justice system personnel.)

The Ministry of Attorney General provides useful information and forms on its family

The Ministry of Children and Family Development website has information about child

The Canadian Bar Association’s BC branch provides information on family law and child

Because it can be maintained centrally, but made available everywhere, this

would be a valuable resource to clients of the family justice system but also to

Hub staff who make referrals to services. It would be especially useful when

staff in one location is asked to make referrals in a different community or

region. Judges, lawyers, mediators, counsellors and others working in the

family justice system would also find this database a useful tool that would

help them give better service to families.

Through a coordinated public information campaign and targeted efforts

aimed at transition house workers, clergy, police, and others to whom people

often turn for information, this portal could become well recognized as the

family justice system’s digital doorway. It would offer up-to-date,

comprehensive information. LSS’s LawLINK program offers a constructive

model and useful information has been provided by a recent evaluation

look like could depend on its location. At some sites it might be as simple as a

computer terminal; at others it might include pamphlets and a printer for

downloading forms and for use in conjunction with in-person services.

Touch screen technology can present information in a way that does not

require keyboard skills. For example, the DNA-People’s Legal Services of

Arizona has a touch screen program that presents visual information and text,

continue to retain lawyers privately. Others will get help as needed from a

range of pro bono clinics and legal services. The Lawyer Referral Service

legal advice offered strategically through the Family Justice Information Hub

could help to resolve conflict before it escalates unnecessarily.

We will discuss in greater detail some ways to provide legal advice to more

people at chapter 7.2.

seeking information about the justice system. We do not see it as the role of

registry staff to perform the functions of a Family Justice Information Hub,

but they have the potential to make a real contribution to its success.

With increasing numbers of people going to court without lawyers, registry

staff are very much the face of the family justice system to many people. By

reflecting the Hub’s ethic of helpful service to the people who arrive at the

(2004).

registry needing information or assistance, they will contribute to building a

positive public image for the family justice system.

Registry staff also need a clear understanding of what constitutes legal

information, which they may give, and legal advice, which they may not.

Some jurisdictions have done considerable work in this area: Michigan has

developed a model that considerably broadens the scope of what many would

think of as legal information and encourages court staff to help unrepresented

Administrators addressed the responsibility of court staff for helping litigants

as a focal point of its 2004 annual conference. We support this initiative and

encourage further similar work.

experiencing family break-up offer opportunities to provide information to

people in groups. BC has considerable experience and expertise in this mode

of information delivery, going back to the beginnings of the People’s Law

School in the early 1970’s.

A more recent innovation, the Parenting After Separation (PAS) program,

gives parents information about the impact of separation on children and

adults, and how parents can best help their children through this difficult time;

about the range of dispute resolution options available, including mediation

and court; and about the child support guidelines. The three-hour sessions are

mandatory at BC’s largest Provincial Court locations for all contested cases

involving children. They are also offered on a voluntary basis in other

communities and in several languages in the Lower Mainland.

In terms of subject matter, the range of information and education that could

be provided in a workshop format could be expanded considerably. For

evening workshops aimed at the small number of high conflict families who

consume large amounts of court resources.

ROM]. Contra Costa: Contra Costa County Superior Court.

of information and referrals to lawyers and other services for parents,

children and anyone else involved in family break-up.

printed materials, over the telephone, the internet, and at kiosks.

as information.

Justice Information Hub.

equipped to play a supportive role in the new family justice system.

mandatory for all parents involved in contested applications concerning

children.

Whether information is provided over the internet, in printed pamphlets, on

the telephone, by means of videotapes, in courthouse signs, or any other

medium, it must be done in a way that takes account of the user’s needs,

abilities, and understanding.

This means more than using simple words. It means breaking complex

procedures down into simple steps, using familiar vocabulary in a consistent

way, and organizing material logically. For printed or internet materials it also

means good design and use of tables, photographs, diagrams and any other

visual device that can support and clarify the text.

Web and printed information should be available in languages other than

English and should also be available in formats designed specifically for

people with low literacy and for those who are sight and hearing impaired.

The LawLine model, which links to interpreters by telephone, could be used

by the Family Justice Information Hub.

Our province’s geography and population patterns pose challenges for

the efficient and effective delivery of services to all British Columbians.

In rural and remote communities, where populations are scattered and

public transit is unavailable or inconvenient, alternatives to in-person

services sometimes must be found. For example, attending PAS sessions

is mandatory in the largest Provincial Court registries in the province,

but elsewhere, people can borrow videos of PAS sessions from their

public library. We support efforts to improve the quality and depth of

the video package.

Video conferencing or webcams should be considered as possible

mechanisms for providing assessment services and legal advice, where

in-person service is impractical. In fact, the Working Group sees the

potential for webcams as a tool for delivering high quality and

responsive service to remote locations.

In-person services that are currently available in rural or remote

communities should be used as efficiently as possible. LSS’s local

agents, for example, are available in some communities that lack other

in-person service: their role could possibly be expanded to include

provision of information services. Provincial Government Agents

around the province may be able to play a role in this respect as well.

Basic information and assessment services for several communities in a

region could be made available in person on a semi-regular basis, linked

to circuit court schedules and other key events in the justice system,

and social service professionals who travel to remote communities on

government contracts could have their retainer extended by a day or

part-day to allow them to deliver a workshop or a one-hour class on a

topic that meets local needs. Or, a workshop curriculum could be

delivered locally by members of community groups working through

the Family Justice Information Hub.

Technology can be used to fill the gaps in availability of in-person

services. Online learning is a growing field and could be used to deliver

programs province wide via the internet. For example, in a California

regional self-help centre a lawyer conducts workshops and clinics via

real-time video conferencing, linking to groups of unrepresented

community workshops, including:

system, in a culturally appropriate way;

Education Society is a leader in the field of online learning and should be a resource for the

delivery of internet educational programs.

sensitivity to the concerns of Aboriginal people; and

issues.

It was clear from the report that many of the concerns raised by Aboriginal

British Columbians were strikingly similar to those raised in all the other

workshops.

At the same time, however, Aboriginal participants identified some

unique issues that did not arise in other workshops, including

communication within and across cultures, different heritages and

languages and Aboriginal women's issues. They suggested that courts

need to be familiar with the community perspective on the family when

making custody orders. This includes the role of the extended family

and the nature of Aboriginal communities. They also felt that service

providers need to know more about the role of the band and the

complexity of living on or off reserve.

We are confident that the recommendations we make in this report,

although addressed to the needs of all families in BC, do respond

especially to concerns raised by Aboriginal British Columbians. As we

move towards resolving family disputes outside of court, in ways that

reflect the values and interests of the particular family, we can develop

new dispute resolution techniques that also encourage the expression of

cultural values and community traditions.

We do recognize, however, that there are unique issues among BC’s

Aboriginal communities that must be addressed.

efforts are underway to adapt the mediation process to the cultures of

Aboriginal people, and we commend such initiatives.

be identified and met. Some of these needs are defined by the remoteness of

their location, and in those cases the observations and recommendations

immediately above will apply. For example, family justice websites can be

developed in collaboration with Aboriginal people, with access facilitated

Local partnerships must involve Aboriginal communities in the development

and operation of Family Justice Information Hubs so that each hub can

respond effectively to the needs of the Aboriginal families it serves.

Hopi in both text and voice over, and is accessed through kiosks on Navajo and Hopi

reservations.

that respects the principles of plain language and the diversity of

languages and cultures in our province.

British Columbians, including those in remote communities, those

with low literacy, with visual or hearing impairment.

services as necessary. Otherwise, communications technology should

be used to make personal contact with people in remote parts of the

province.

province be a particular focus of attention for local steering committees.

Once people have an information base, they need to know how the

information applies to their particular situation. They need to know what to do

next.

This is why needs assessment and referral are an integral component of the

Family Justice Information Hub.

From the justice system’s perspective, resources are limited and need to

be applied where they can do the most good. Separation and divorce are

often linked to other issues such as financial problems, mental health

problems, or substance abuse. Qualified staff at the Family Justice

Information Hub could assess clients’ circumstances and determine

what process or services they need.

Safety issues can be identified at this stage. Skilled assessors can recognize

adults and children who are at risk. Research and experience both show that

spouses are often at greatest risk of violence from a spouse or partner in the

period immediately following separation. An assessment worker can refer

such a person to legal and other support services.

If a restraining order is needed, a case can be put quickly before a judge.

Similarly, child protection cases that must get into court immediately to meet

legislated time frames can bypass assessment. On the other hand, cases that

seem suitable for consensual dispute resolution processes can be sent in that

direction.

An assessment system for some family law matters now operates in three

Provincial Court locations in BC through the Family Justice Registry

Program: parties applying for custody, access, guardianship and child support

must meet with a Family Justice Counsellor to learn about available services,

before they can appear in court. An evaluation of this project shows that

families find these interviews helpful and fewer cases go on to trial. Cases that

recommendations for assessment are informed by what we have learned from

this project, but they go beyond it.

Needs assessment should be available at the Family Justice Information Hub

to anyone at the early stages of a dispute, and throughout, so that people can

return for more help when they need to make new decisions.

In-person assessment services should be available through the Family Justice

Information Hub in as many communities as possible. This will be a challenge

in BC, where geography complicates service delivery. When similar services

were being tested in 1999, a pilot project at three small court registries in the

Kootenays demonstrated that they could not be provided economically to

these rural communities.

More creative service delivery models will have to be found for rural and

remote communities: telephone assessment services, a "circuit court"

approach, webcam conferencing and video conferencing are potential tools.

Webcam conferencing offers potential for extending assessment services to

people who cannot easily visit a Family Justice Information Hub; it can occur

between desktop computers and does not result in long distance charges. BC’s

Access to Justice pro bono network, for example, has been linking clients in

Williams Lake with pro bono lawyers in Vancouver via webcam since August

2004. The project is expanding to provide service to clients in Smithers,

Prince Rupert, Terrace and Grand Forks.

Women who have recently arrived in Canada can experience special problems

during separation and divorce, especially if they are leaving an abusive

relationship. They may feel extraordinary pressures from their own cultural

community to remain in the home; if they leave they may face social isolation.

Their own cultural values may emphasize the collective good over individual

interests, making it harder to justify leaving. Many have a deep-seated fear of

police and other authorities. They may also fear racism, threats to their

immigration status and deportation. They often lack knowledge of the family

justice system and available resources and if their English language skills are

R.A. Malatest & Associates, Ltd., for the Ministry of Attorney General, November, 2002.

not good, they may have trouble taking advantage of those resources, even if

The Family Justice Information Hub could gain a high profile in all sectors of

the community, including among immigrant populations. Knowledgeable staff

would make referrals to services that are culturally appropriate and could

make interpreters’ services available as well.

Our proposals aim to create a shift in public expectations so that people will

expect to resolve their family disputes without going to court.

In our proposal (see Chapter 4) an attempt at consensual dispute resolution

will be required, with certain exceptions, before a family case can be taken to

court.

The assessment service will be available to meet with people to determine

whether they can be exempted from this requirement. The assessment service

will also help give people options for choosing a mediator or collaborative

lawyer and explain how these processes work and their place in the justice

system.

A file will be opened for every person attending the assessment service,

recording basic information including the issues in dispute, names, and

addresses, and the services to which people have been referred. If clients

return to assessment at a later stage, they will not need to repeat their story

and staff can consider what steps have already been taken to try to resolve the

matter, before making another referral.

Implementation of an assessment service of this nature will need to ensure

that confidentiality of personal information is respected and that potential

conflicts of interest are addressed when assessors provide services to both

spouses.

Clearinghouse on Family Violence, Family Violence Prevention Division, Health and

familyviolence/html/femisol_e.html

staff, be available to anyone at the early stages of a dispute as a

component of the Family Justice Information Hub.

not possible, by telephone or other communications technology.

developed for use by those who work in the family justice system.

dispute resolution by screening participants, providing information and

referrals, and granting exemptions (from the consensual dispute

resolution requirement).

"Integrated service delivery" means related services working together to

minimize gaps and overlaps in what they provide to their clients, and it means

that clients can easily find the services they need, and can move easily from

one service to another.

For families in crisis, legal solutions alone are often not enough. Assessment

staff at the Hub must be well informed about the full range of services

available in the community, eligibility requirements, and waiting lists so that

they can refer clients appropriately.

BC has a wide range of government and non-government services for families

workers have trouble keeping current with all of them. In some communities,

agencies that serve the same clientele are unaware of each other. The result is

service gaps and occasional overlaps in family programs. The online database

of services that we recommend as a component of the Family Justice

Information Hub will allow anyone to find current, reliable information about

services to meet a particular family’s needs.

It is important that the Family Justice Information Hub be linked to service

providers in the community, such as transition houses and victim service

workers, so that people can move efficiently from one option to another when

they need to. For example, a community service worker may help an

Vancouver, January, 2004

unrepresented litigant to complete a court application and then accompany the

person to an appointment with a lawyer.

The Hub should strive to provide an effective, integrated referral service

offering current information about the full range of available family

kind of integration, as evidenced by the success of the Robson Square project,

where LSS and the Ministry of Attorney General work together to provide

At Robson Square, family duty counsel, advice lawyers and family justice

counsellors serve clients at a single location. Family justice counsellors

provide mediation while duty counsel can speak for clients in court on simple

matters, help draft documents to be filed in court, and negotiate and settle

issues. Advice lawyers help unrepresented clients before and after their court

appearances and help low income parents who are participating in the Family

Justice Centre mediation process.

By contrast, in Surrey, where two lawyers are on duty daily and the number of

cases is about the same as at Robson Square, mediation is not available at the

courthouse. This means that people have to make an appointment and arrange

to go to another location. If child care and transportation are issues, this small

delay and inconvenience can mean the difference between taking advantage of

mediation services and not.

committee, be developed as an essential component of the Family Justice

Information Hub.

supported by a comprehensive online database, available to clients,

judges, lawyers, and all service providers.

is a guide to community, social service and government agencies and services across the

Lower Mainland. Updated monthly, it provides more than 4000 detailed listings of a variety

of services including legal, counselling, health, financial, housing, employment, education,

recreation, cultural, political, business and transportation. This resource was developed by

the Vancouver Public Library and Information Services Vancouver, with funding from the

provincial government.

Vancouver: Legal Services Society of British Columbia. Prepared by Focus Consultants

Over the past 20 years the range of dispute resolution options available to

separating families has expanded enormously. In BC there are qualified

family law and child protection mediators, Family Justice Counsellors

providing mediation, lawyers practising collaborative law, and dispute

resolution services offered through social service agencies.

Still, people choose to go to court. These newer, more family-friendly options

remain the "alternative" and the courtroom remains the norm.

There once was an expectation that if mediation and other "alternative dispute

resolution" (ADR) options were simply made available, people would

recognize their advantages and seek them out, rather than choose to go to

court. This has not happened to the extent some expected. Although more and

more families are aware of "ADR," public awareness of these options still

competes with a lifetime of exposure to the court system.

It also used to be accepted that mediation could work only if the parties

voluntarily chose it. This has proved to be wrong. Settlement rates and

satisfaction levels are about the same, whether people have chosen mediation

The fact is that most people learn about mediation when they actually

participate in it, and most are pleased with the process and the result.

This is why we are proposing that, unless there is good reason not to, anyone

who wants to go to court with a family law issue must first try to resolve it

through a consensual process. "Mediation" and "collaborative process" are

defined below; we refer to them collectively as "Consensual Dispute

Resolution" (CDR).

A decision by a judge must be available when necessary, but families should

have primary responsibility for making their own arrangements, even if their

legal relationships are changing.

This reversal of long held assumptions must be reflected in public spending

priorities. Subsidies should be shifted so that the fee for taking a family matter

to court more closely reflects its true cost. This money, and the savings to be

Conflict Resolution Quarterly, Vol. 22, nos. 1-2, (Fall-Winter 2004). A study of California

mandated mediation found a majority of participants satisfied with both process and

outcome.

gained through efficiencies in the court system can then be used to ensure that

CDR can be affordable to all.

These recommendations are designed to change the way people think about

resolving family disputes—the people who are going through separation or

divorce as well as those working in the family justice system.

The Divorce Act was amended in 1985 to compel lawyers to discuss

negotiation and mediation options with clients involved in support or custody

disputes. The standard of practice should now require that lawyers do more

than talk about options. We see the role of lawyers in family law continuing to

be important, as more and more they are called on to actively help their clients

choose the CDR option that has the best chance of success in their particular

circumstances, not just in custody and support cases, but in all family matters.

The role of lawyers will of course include assisting clients to pursue their best

option.

Our hope is that in the not too distant future, the initial response of almost

anyone facing family break-up will be to try CDR with a recognized

professional; then, if that should fail, go to court and ask a judge to become

involved.

By requiring people to try CDR before asking a court to intervene, we aim to

build a cultural expectation that the responsibility for resolving disputes is, at

least in the first instance, the responsibility of the family members themselves.

The family justice system will support them in the exercise of this

responsibility, by offering information, services and referrals and ensuring

that CDR options remain available in a meaningful way, with levels of

support and advocacy that respond to families’ actual needs.

Before going further, we should make clear what we mean by "mediation"

and "collaborative process."

third party facilitator—the mediator—who has no decision making power.

Unlike litigation, it is a private process that is both informal and flexible. The

people themselves, and not the mediator, decide the terms of the agreement.

The mediator is trained in communication, problem solving and facilitation.

Different models of mediation are available, including "shuttle mediation" in

which the mediator meets separately with each of the spouses and they do not

come face-to-face. Mediation can happen with or without lawyers present,

depending on the amount of support and advocacy people want.

together, with their lawyers, to resolve disputes respectfully and

constructively. The couple and their lawyers agree at the start not to resort to

the courts and that if either of them starts a contested court action, the process

ends and both lawyers withdraw from the case. This means that each person

has the support of an advocate who has been hired specifically to help that

person resolve matters. Other professionals, including financial advisors and

child specialists, may be involved as well, depending on the people’s needs

and the issues involved. The focus is on a coordinated resolution of all the

issues that are important to the parties, whether they be legal, emotional, or

financial.

It is difficult to know the full extent of family violence in Canada because it

often remains hidden. Some people never disclose that they have been abused

and others may endure abuse for a long time before acknowledging it or

seeking help.

women and 7% of men who were married or living in a common law

relationship during the previous five-years (690,000 women and 549,000

men) had experienced some type of violence by their partner at least once.

Men reported a significant amount of violence, but the survey showed that the

Other studies report a much higher incidence of family violence.

Research tells us that separation is a high risk time for family violence. More

than a quarter of women who are killed by a spouse are killed during the time

following separation, and in almost half those cases, there was no known

In proposing a family justice system that asks spouses to take responsibility

for their own family arrangements after break-up, we recognize the need to

consider issues of gender, power and violence. The safety of family members

must be the number one priority.

This report advocates for a Family Justice Information Hub that would be a

safe place for people to find information and for public education in the areas

of family violence, legal rights and options. The Hub would provide for ready

access and referrals to community resources for victims of abuse, and help

with getting quick access to court in emergency situations.

English speaking males and females over the age of 15 were asked about the occurrence of

violence in intimate relationships both during the last year, and the preceding five years.

Questions related to a selection of physically violent acts, and also to a selection of

emotionally abusive acts.

http://www.statcan.ca/Daily/English/000725/d000725b.htm

Violence (Feb 2, 2002). http://www.bcifv.org/hottopics/media/feb2.shtml

Some commentators advise women against using mediation to resolve support

and property issues. They believe that inequality in income and power

between men and women in our society makes it impossible for most women

to achieve fair settlements, except by court order. However, hiring lawyers

and going to court is not necessarily the solution either. It is possible that

hostility and aggression can be misused by one party in the court process to

overwhelm, intimidate and exhaust another.

Mediators say they can identify and effectively address such power

imbalances in most cases and that they proceed with mediation only when it

can result in a fair settlement. They point out that there are forms of mediation

that include little or no face-to-face negotiation between the parties and that

offer support and protection.

Our view is that power imbalances exist in many forms in all relationships and

it is how these are identified and handled that is important. CDR allows for

assessment and management of power imbalances so that a fair and lasting

agreement can be reached.

This means, of course, that assessors need to be highly skilled and alert to risk

factors so they can steer clients to services that can help. Using tested and

accepted protocols to screen for violence is crucially important. Dispute

resolution professionals must also be properly trained and able to use a variety

of techniques, including separate meetings with the parties, and to recognize

when parties need the support of others, such as lawyers, to help them in their

negotiations.

Legal advice is key will be important for both parties once they reach an

agreement to make sure that the settlement is fair before it is made binding.

In the mandatory CDR model that we propose, it is participation in a single

CDR session that is mandated, not settlement. People can participate in

collaborative law or mediation voluntarily but if they do not, they will be

required to attend mediation before appearing before a judge unless they

qualify for an exemption. We recognize that this requirement is a fundamental

shift, although it builds on a trend that has been developing over the last

decade. We have carefully considered the arguments on both sides, but

overriding all the concerns we have identified are these:

consequences, are emotional events, often closely linked to issues that the

law is powerless to address.

improve communication between parents and their children, and between

parents who are moving from an intimate relationship to one that is more

"business-like."

the social service agencies they deal with.

future disputes.

these conclusions. Still, there are legitimate questions that need to be

addressed and we do so in this table:

CDR is, by definition, a voluntary

process.

Agreement is always voluntary;

participation in a single session is all that

is to be mandated.

Mandatory CDR delays access to a court

and, if unsuccessful, adds cost.

Mediation can fit within the timeframes of

a court proceeding without adding delay.

What is important to families is access to

an effective way to resolve their dispute.

Most cases will resolve, but for those

who cannot agree on all issues, CDR will

identify and narrow those that a court

must address. Then the court process

can be more efficient and effective.

edition, Volume 1. West Publishers (2003). Numerous mediation studies are summarized in

this publication.

Abusers may use CDR as a tool to

harass and maintain contact with their

victims.

Court proceedings can also be misused

in this way and, especially for

unrepresented litigants, safeguards may

be ineffective.

One session is all that is required.

Skilled mediators and collaborative

lawyers can manage the process so as

to minimize risk, for example, by using

"shuttle mediation" where people do not

have to be in the same room together.

Inappropriate cases must be screened

out of CDR.

Some people need strong advocacy to

help them when they are going through

separation or divorce

CDR processes can, and commonly do,

include effective advocacy in a

cooperative forum.

Under a mandatory system, everyone for whom CDR is appropriate and who

would otherwise take their disputes to court will participate in at least one

CDR session. The result will be many more people resolving issues in this

way, higher satisfaction with the resolution process, more durable agreements,

and a more efficient and effective court system for those who need it.

The CDR process must be designed to ensure that a party’s access to court is

not unduly delayed either by the other party’s refusal to participate, or by a

lack of CDR providers. Further, anyone who refuses to participate in

mandatory CDR should not be allowed to take any step in the court process

except a response to a court application, until the CDR requirement is met.

We recommend mandatory CDR for cases involving support, custody, access,

guardianship or property division. There may, however, be an argument for

exempting some categories of cases, such as support applications by the

Ministry of Human Resources in respect of income assistance recipients, or

This needs further study.

We recommend mandatory CDR for child protection cases but recognize that,

given the rules and statutory time lines that apply to these cases, the structure

of a mandatory mediation regime for these cases would differ from one for

disputes between separating or divorcing couples. The time and resources

available to us do not allow for adequate exploration of these complex policy

questions, which will need to be developed by others at a later date.

allowed to take a first contested step in a court process, unless exempted;

guardianship, access, child support, spousal support, property division,

and child protection.

Twenty years ago the use of mediation as a tool for resolving family law

disputes was seen as a breakthrough. Since then, the dispute resolution

community has grown and matured and process options have multiplied so

that now there is a consensual dispute resolution process that can help to

resolve almost any case.

The assessment service at the Hub will help people to choose the process that

best meets their needs.

Many will find the traditional face-to-face mediation model the most

appropriate and useful, but there are other options.

For example, a person who wants to use a lawyer in CDR can retain a

collaborative law lawyer or can use a mediation model in which people bring

their lawyers to the sessions or consult with them between sessions and before

committing to an agreement.

A family with extreme conflict might choose to use shuttle mediation so that

they do not have to be in the same room together, and may choose to include

support people for each of them.

Mediators who are trained to work with children can do so in separate

sessions, giving children a voice in mediation.

Mediation is effective in a wide range of situations but we recognize that there

are cases where it is not appropriate. For most of those, a collaborative

process can be effective because it allows for a more intensive form of

advocacy or support. Interdisciplinary collaborative practice groups offer a

range of services from various professionals including:

health fields and training in mediation and collaborative processes. They

support people through the emotional turmoil of separation, help them

communicate with each other as they work towards resolution, and help

parents develop parenting plans that meet their children’s needs.

ideas about what the children want or what is best for them. The child

specialist gives parents unbiased information from and about their children

to help them develop a parenting plan.

projections to help each of them understand the financial impact of different

settlement proposals.

We do not know how many separating families simply stay away from the

family justice system altogether, even though they need help resolving their

disputes, but we do know that this happens. There are several possible

explanations:

the court system unrepresented;

they retain a lawyer;

cannot afford an alternative.

Access to and information about mediation, collaborative process, and limited

legal services to support negotiated settlements will help make these processes

available to those who now do not approach the family justice system at all.

The mandatory CDR requirement we recommend would apply only to those

who are asking for a court hearing on a contested matter.

People who have tried a CDR process but have not successfully resolved all

issues will obtain a certificate signed by a CDR professional, establishing that

the requirement has been met.

Those entitled to issue a certificate of compliance with the CDR requirement

would be either certified mediators or collaborative professionals who meet

practice and ethical standards that should be developed and adopted through a

consultative process.

Certified mediators would include anyone who is:

Society of BC.

issue certificates of compliance with the CDR requirement.

Mediation may not be appropriate if:

participating;

mediation procedurally fair; or

High quality screening for abuse and power imbalances is essential for the

safety of family members. The assessor may find that a person can safely

participate in CDR, but only with the support of someone such as a lawyer, or

a friend or family member. Those who are or have been subject to abuse can

be particularly vulnerable during the separation process, so it is important to

know whether there has been abuse in the relationship and if so, how serious.

Some people do not recognize that they are living in an abusive relationship:

they may blame themselves, or deny or minimize the abuse. This means that

staff in the assessment service must be highly trained and skilled in these

areas.

Because people may go to a CDR practitioner on their own without having

first seen an assessor, the mediator or collaborative professional also will need

to be alert in the initial interview to abuse issues and to monitor continuously

because people do not always disclose abuse at an early stage. If the CDR

professional determines, after the CDR process has begun that it is not

appropriate, the parties would receive a certificate of compliance and would

be permitted to go to court.

However, the existence of abuse does not always mean that CDR cannot be

effective. Experience in child protection mediation has taught us a lot about

the ability of the mediation model to accommodate the needs of many

families, even where there has been serious abuse, addiction or mental illness.

developing an assessment model. It includes:

1. intake screening: at first contact, an initial screening for abuse.

2. separate face-to-face interviews by the mediator before the first session, to

allow the mediator to decide whether mediation is appropriate.

3. ongoing screening by the mediator who watches for signs of coercion or

intimidation as the mediation progresses.

Couples who want only to file an agreement or consent order would not be

included in the mandatory requirement, but for all other cases, exemptions

from the CDR requirement should be limited.

An automatic temporary exemption should apply to anyone asking the court

for a restraining order (whether to protect a person or assets). Unless there is

an exemption through the assessment process, for reasons of family violence,

for example, the CDR requirement would have to be met after the restraining

order application is heard, before another contested step in the court case.

Anyone who wants to make an application for a contested hearing other than a

restraining order and wishes to be exempted from participating in CDR,

would go to the assessment service at the Family Justice Information Hub.

There, the case would be screened to determine whether it is appropriate for

CDR. If it is not appropriate, the person would be exempted and would then

be allowed to take the next step in the court process.

Even those who are exempted from mandatory CDR can be offered voluntary

referrals to other community services such as legal aid, or mental health or

substance abuse services.

standardized screening protocols.

appropriate, exemptions based on formal assessment and screening by

qualified individuals be available from the Family Justice Information

Hub.

available in the case of an application for a restraining order; unless there

is a further exemption, the requirement must be met after the restraining

order application but before another contested step in the litigation

process.

To the extent that it mandates CDR, the government has a responsibility to

ensure that CDR services are provided by qualified practitioners who meet

recognized standards of practice.

These quality control mechanisms are already at work in BC:

provide family mediation to people of modest means, are certified by

having mandatory standards of conduct and providing a process to deal

with complaints it brings a level of quality control to the process.

do family mediation. It also defines certain rules for the conduct of family

mediation and provides a process to deal with complaints.

If the government authorizes only those professionals who meet established

standards (see 4.6) to issue certificates of compliance with the CDR

requirement, then these standards will become the accepted standards of

practice.

Public education will also be important. Once the public has a better

understanding of the dispute resolution professions, market forces will play a

role in enforcing standards of practice.

There now are many opportunities for people to learn dispute resolution skills

but fewer opportunities to gain experience. The Family Mediation Practicum

Project is following the example of the successful Small Claims Mediation

opportunities are needed for trained CDR practitioners to gain practical

experience.

We endorse the roster model used by the BC Mediation Roster Society and

recommend it be used for CDR purposes.

services under this mandatory scheme be required to meet recognized

standards of training and practice.

BC Mediation Roster Society’s family roster.

professionals to gain practical experience.

Consensual dispute resolution should be attractive to people as a costeffective

way to resolve family issues, accessible at all income levels. At

present, litigation is a highly subsidized method of dispute resolution. Our

view is that public subsidies should be shifted towards CDR.

We propose that an initial mediation session be provided free of charge to any

family. Payment would be made by government at an established tariff rate. A

couple would be free to use, and pay for, the services of a CDR professional

who charges more, if they so choose.

For those in financial need, assistance should be available, on a sliding scale,

for enough sessions to allow a meaningful opportunity for settlement.

Families for whom mediation is not appropriate may well be able to make use

of collaborative process. Manitoba is currently funding a legal aid

collaborative project for family law clients and the results of that project

should be monitored for possible application in BC.

To the extent that family legal aid funding is available, the LSS should

continue to support CDR through its programs and its tariff.

Technology offers potential for reducing the cost of CDR in some instances.

Video conferencing and webcam conferencing are being used by private

are a barrier to access.

providing the first session free for everyone, with further sessions charged

on a sliding scale, depending on income.

People need access to different forms of independent legal advice, whether

from a privately retained lawyer providing full representation throughout, or a

lawyer hired to advise on a single issue or on a final agreement. (In Chapter 7

we discuss the role of "unbundled" legal services in the family justice

system.)

If people reach an agreement through CDR without the involvement of

lawyers, they will need some advice to finalize the agreement and put it into a

form that will be legally binding: either a written agreement or a consent order

filed with the court. People should be educated about the importance of this

advice.

Again, the expectation is that people will pay for this service, but subsidies

should be available, according to need. Lawyers should be encouraged to be

prepared to support the use of CDR by offering to provide legal advice

whether before, during or after CDR processes. They could receive referrals

through the Hub. For people who do not have a privately retained lawyer,

legal advice for this limited purpose should be available at the Hub.

before entering into a binding agreement;

help low and middle income families formalize the agreements they have

reached through CDR so that they are legally binding.

The law says that decisions about parenting arrangements must be based on

the best interests of the child. When parenting disputes go to court, judges,

lawyers and parents struggle to find ways to understand and give expression

to those interests.

Mediation can offer a forum where parents can more easily hear their

children’s concerns and take them into account in their agreements. Mediators

need to be trained to involve children in the process in appropriate ways. The

use of trained child specialists should be supported to bring children’s voices

into mediation and collaborative sessions.

In Chapter 5 we refer to the study being conducted by The International

Institute for Child Rights and Development into child participation in family

court and in processes in British Columbia. That report and its implications

for children’s participation in CDR should be considered carefully.

In the family justice system we propose, consensual resolution is the

mainstream and trials are the alternative, but trials still will play a key role

and courts must remain accessible. In some cases, the need for a trial may

reflect failure by an uncompromising person to take responsibility for

reaching an agreement. In others, trial may be necessary to resolve a new or

difficult issue, or to address uncertainty in the law. In any event, it is the

knowledge that the courts can ultimately be invoked if necessary that brings

many people to the bargaining table.

Under our proposed family justice system, people will have been given every

opportunity to settle before they get to the courtroom. So, once it is clear that

a case is destined for trial, a timely and efficient hearing should become the

focus of everyone’s efforts. That said, links between the court and family

services must remain readily available. For example:

may arise as litigation evolves, so it must be easy for families to "loop

back" into information and advice services or into CDR at any time; and

decisions to be made for children and help to reduce conflict. Some of these

services have already been described in Chapter 3 and others are identified

in this chapter.

These continuous links between "front end" services, the range of CDR

options, and the courts are a hallmark of the new, integrated family justice

system that we propose.

Once it is clear that a family cannot resolve its issues and a decision must be

made, the dispute should be resolved as expeditiously as possible. We think

family cases should be carefully managed through the court process to ensure

that they move forward. Our case management system relies on meaningful

court events that focus on early settlement.

Family law is not the only area of law where procedures have become too

expensive and complex. An urgent need to streamline all types of litigation

was identified by the Canadian Bar Association’s 1996 Civil Justice Task

Force, Lord Woolf’s 1996 report on England’s civil justice system, Ontario’s

resources are usually strained, emotions run high and families need to make

plans for their future, the need to simplify and streamline is most acute.

In family cases it is increasingly common for at least one, if not both sides to

be unrepresented. Common law jurisdictions around the world are seeing a

significant increase in the number of unrepresented litigants. They are here to

stay, so every family law form and procedure should be designed so that the

general public can understand and use them.

Preparing pleadings (the formal documents that are the basis of a lawsuit) is a

significant hurdle for people with no legal training. For those who do have a

lawyer, the preparation of pleadings can be an expensive part of the process.

Most families do not have complicated financial lives and do not need and

cannot afford complex pre-trial procedures that have been developed with

commercial and personal injury cases in mind. Family cases, whatever the

issues, could benefit from a level of process that is proportionate to what is at

stake and flexible enough to meet the unique requirements of each case.

"Proportionality" should be a goal of family law procedure. Ontario’s family

court to deal with cases justly. Dealing with a case justly is defined, in part, as

"dealing with the case in ways that are appropriate to its importance and

complexity" and "giving appropriate court resources to the case while taking

Another example can be found in England where proportionality has been

adopted as the overriding objective of the Civil Procedure Rules: the rules aim

to deal with cases in ways that are proportionate to the amount of money

involved, the importance of the case, the complexity of the issues, and the

financial position of each party.

Any suggestion of streamlining procedures may raise concerns about potential

loss of protection and risk of unfairness. In fact, procedures we have now,

particularly in Supreme Court, have become so complex and unaffordable that

unfairness is often the result. Balance between procedural complexity and

efficiency must be readjusted in favour of efficiency. We adopt the views

On the other hand, it can be argued that protracted procedure is frustrating access to

the courts to a degree that threatens the credibility of the civil justice system, and

some balancing in favour of affordable dispute resolution must be achieved. Access

to justice cannot mean every litigant has, or needs, access to every procedure in

every case. More to the point, the fear of the unfairness that might occur in some

cases if process is reduced or constrained must be balanced by the unfairness that is

occurring now because the courts have become unaffordable for most litigants. From

this perspective the argument is that the real and ultimate effect of so much civil

process is to undermine or eliminate fairness for the many would-be litigants who

cannot use the system. By definition this unfairness is less visible; it is visited on the

Working Group, Vancouver, BC, (September 2004), p.5. Link from

http://www.bcjusticereview.org/working_groups/civil_justice/civil_justice.asp

heads of those who cannot afford to get before the courts, but it is arguably a greater

unfairness.

What follows is a general framework for a single set of simplified family

rules. We are convinced that streamlined family rules will enhance fairness by

making the court more accessible for the few cases that need adjudication.

The guiding principle is process that is proportional to the issue.

The table does not list every step in the litigation process but illustrates the

type of changes we are recommending.

There are other rules and options that we have considered and decided not to

recommend. For example, "pre-action protocols" are being used extensively

in civil litigation in the United Kingdom: the theory was that requiring an

exchange of information between parties before an action could be started

would lead to many settlements and streamline cases that did not settle. In

fact, the best information we have is that the potential value of these protocols

is often undermined by the complicated and expensive paperwork they

generate.

On the other hand, a different pre-action procedure is being tried in Australia:

new family law rules say that before starting a case, each party must try to

resolve the dispute using "primary dispute resolution methods" (such as

mediation) and must disclose relevant information to the other. There are

exceptions to the requirement but, generally, a person who does not comply

may begin a court case but may face "serious consequences" including cost

penalties.

Our approach does encourage people to try to resolve their disputes before

turning to the courts and establishes a new expectation that this is a family’s

responsibility, but we have chosen not to recommend at this time that such a

requirement be imposed before an action can be started. That said, it will be

worth monitoring the operation of the new Australian rule to see whether it

offers some lessons worth following.

We also considered the use of arbitration for family law disputes and

concluded that while it may possibly be more procedurally streamlined than

litigation, it may in many cases be equally complex and expensive. Further,

we feel that the most productive direction for reform is not toward another

adversarial alternative.

Preserving a

limitation period

document called a "Notice

to Preserve Limitation"

which asks only for

identifying information

from the parties and a

description of the right or

claim preserved, without

a claim for relief. It must

be filed and served to be

effective.

It should be possible to

stop a limitation period

from running without

having to start an action.

(Any dispute about

entitlement to the right

allegedly preserved can be

resolved in subsequent

litigation, if that occurs.)

Starting

a claim

and Provincial Court

forms with a simplified

"Application" using check

boxes and fill-in-theblanks

to identify and

locate the parties,

establish a reliable factual

basis for jurisdiction, and

describe what is being

asked for.

Disclosure Form (FDF) be

filed at the same time as

the Application.

Require only as much

information as necessary at

this stage; minimize

exaggerated claims and

polarizing affidavits.

Early financial disclosure

facilitates settlement while

ensuring that the person

receiving the Application

has the information on

which to base a response.

Opposing

a claim

serves a "Response"

(simpler and shorter than

a Statement of Defence)

within a fixed time period,

together with an FDF.

Appearance.

Simplify forms. Ensure that

the applicant has the

information on which to

base negotiations.

Eliminate unnecessary

steps.

To get before

a judge

involve a judge serves

the other with an

"Appointment to Attend a

First Case Conference"

(FCC); and files, for nonurgent

matters, a

certificate of compliance

with the CDR requirement

(or an exemption

certificate); and, for

matters involving

children, a certificate of

attendance at a Parenting

After Separation course.

Except for urgent matters,

a party cannot go before a

judge on a contested

matter without first

attending an FCC and, if

there are parenting issues,

the Parenting After

Separation program.

First Case

Conference

(FCC)

Judicial Case Conferences

and Family Case

Conferences, but can go

further. Parties attend.

The judge takes an active

role, helping to define the

issues and plan the trial if

settlement is not possible.

A trial date may be set.

No orders may be made

except:

unopposed order,

including an

uncontested divorce;

order, in urgent cases;

discovery, expert

reports, etc);

mediation.

Ensure that parties,

especially if unrepresented,

have explored all

settlement options and if

settlement is not possible,

that they are well prepared

for a trial.

Eliminate unnecessary

steps: uncontested orders

should not require anything

further.

Orders that can promote

settlement, or enhance trial

preparation, should be

available at the FCC, such

as those listed here.

Discovery of

documents

common to most cases,

(the FDF and

attachments) is

automatically required; if

further documents are

needed, and are not

provided, an application

can be made at the FCC.

Eliminate unnecessary

steps (Demand for

Discovery of Documents).

The scope of disclosure

may be limited in the

interests of streamlining.

Examinations

for discovery

or a judge orders, there is

no right to oral

examinations for

discovery.

Keep the process

proportionate to the value

of the dispute: most

families’ circumstances do

not require examinations

for discovery. This rule is in

effect in Ontario.

Expert opinion

evidence

needed on a financial or

parenting issue the

parties must agree on

one expert, unless a

judge orders otherwise.

custody and access report

is not permitted without

leave of the court.

issues is not permitted

unless the experts have

met and tried to resolve

their differences.

court.

Reduce costs: hiring

experts for each side is

prohibitively expensive for

most families, and not

always necessary.

Eliminate the cost of having

experts appear in court

unnecessarily.

Minimize the emotional

harm that can be caused

by expert reports on

parenting issues.

Chambers

applications and

case

management

hearings

(CMH)

application is permitted to

resolve matters that

cannot wait until a final

hearing or Case

Management Hearing.

application is needed, a

CMH is available at the

direction of a judge or the

request of a party. When

possible, the same judge

should be designated to

manage subsequent

interim applications and

case management

hearings.

Reduce cost and minimize

conflict: interim

applications in family cases

can be expensive and

inflammatory.

Deal more effectively with

high conflict cases.

Mandatory offers

to settle

every case and must be

exchanged before the

Trial Readiness

Conference. They cannot

be modified or retracted

after the Trial Readiness

Conference without a

court order. An offer must

address all claims. Sealed

copies of all offers in the

court file will be

considered when costs

are determined.

Force parties to think

through, and commit to, a

proposed resolution early.

Encourage realistic and

genuine attempts at

agreement.

Enhanced front end

services should better

prepare parties to

articulate and define their

interests.

Mandatory

Trial

Readiness

Conference

consideration of whether

settlement should be

discussed. If settlement is

not achieved the judge

determines readiness for

trial. A case not clearly

ready for trial is taken off

the list. A wide range of

case management and

trial management orders

can be made, involving

admissions of fact,

admission of documents,

a trial scheduling plan,

evidence by affidavit,

witness lists, time limits

on direct or crossexamination,

written

submissions, etc.

an FCC or CMH may hear

a contested chambers

application or preside

over a settlement

conference but the

settlement conference

judge would not hear the

trial, except with the

consent of the parties.

Make the trial as efficient

as possible by narrowing

the issues in dispute and

readying the case for

hearing. This will often

reduce preparation costs

and result in a shorter and

more affordable hearing.

Trial The judicial role at trial is

active and involved. The

process is less formal.

Proceedings are governed

by the principle of

proportionality.

A more flexible and

informal hearing format

can better meet the needs

of families. (See s.5.2 for

discussion.)

Incentives,

disincentives

and costs

be strictly enforced. Costs

should be used as a

meaningful incentive for a

reasonable and

productive approach.

Lawyers, their clients, and

unrepresented litigants will

benefit from the certainty

and predictability that strict

adherence to the rules will

bring.

(See s.5.3 for discussion of

costs and fees.)

The financial statements required in both courts are too complicated. The

Supreme Court Financial Statement (Form 89) is 11 pages long. Many people

are overwhelmed by the forms and give up before even beginning to provide

their financial information. This creates two problems:

1. the forms are prepared incompletely, inconsistently or inaccurately.

2. the complexity of the form (and the detail required) delays meaningful

settlement discussions and interim support applications, creating

hardship for a person who needs interim child or spousal support.

There should be a simplified form for the majority of cases, where assets

include at most, a house, cars, modest RRSPs or pensions, modest bank

accounts and personal property. A more complex form could be available for

use by the minority of families with more complicated financial

circumstances.

The form and Supreme Court Rules give no direction as to whether the

expense information provided should reflect actual current expenses; expenses

that would maintain the pre-separation standard; projected expenses once

issues are resolved; or projected expenses based on what the person would

like to spend, or believes would be fair (described by some as a "wish list").

The lack of direction causes confusion both for the person completing the

form and for anyone who needs to rely on it.

The simplified forms should be signed under oath, as they are now. The

required attachments (three tax returns and Notices of Assessment, pay stub

and Property Tax Notice) should be maintained because they are essential for

a basic financial assessment.

The automatic forms generation technology described later in this chapter is

ideally suited to easing the task of completing financial disclosure forms.

allow for expedited, economical resolution of all cases with processes

proportional and appropriate to the value and importance of the case.

understood by an unrepresented litigant.

on which expenses are to be recorded be clarified.

One of the major hurdles faced by unrepresented litigants is completion of

court forms, particularly in Supreme Court where traditional "pleadings"

require legal knowledge and a more complete understanding of how to present

a case than is available to most non-lawyers. Even in Provincial Court,

completing the financial disclosure form is a daunting task: the form is more

complex than it need be for most families, because it has to account for a wide

range of possible circumstances.

Filling out a form incorrectly or incompletely can result in added expense and

can also affect the success of a person's claim or defence. The court system

itself pays a price as well, because registry staff spends time helping people,

answering questions, and correcting or sending back forms that are not

properly completed. Judges too, must take extra time in court when written

information is not presented as it should be. Adjournments, delay and

frustration often result.

automatic forms generation. In many US jurisdictions, people can go online

and, by answering a series of questions produce properly completed, neatly

printed forms.

The questionnaires are "dynamic." That means that a person’s answers to

certain questions determine whether further questions will be asked or not.

For example, if there are no children, the system will not present questions

about children; if there are five children, the system will ask for five names

and birthdates. If the answer to a question about dividend income is that there

is none, there will be no questions about amount.

These are not simply forms that can be completed online. The "pages" that a

user sees do not necessarily look anything like the form that will ultimately be

generated. They can take advantage of helpful graphic design, diagrams and

photos, and hyperlinked instructions. Even if the forms themselves are

mandated by rules or statutes, the questions that the user answers can be

presented in any way that is most likely to elicit the needed information.

Current technology calls for these automatically generated forms to be printed

out and then filed at the courthouse. Soon it should be possible to file them

electronically from anywhere internet access is available. This approach is

searches of civil court proceedings filed in any registry of the Supreme Court or the

This technology not only has the potential to provide access to court forms at

any time and anywhere that there is internet access, but it allows for the

presentation of helpful information in many ways, including streaming video

Experience in California has shown that not only do litigants find these forms

easier than traditional paper forms, but the time required by court staff and

legal professionals who help people with forms is decreased drastically.

Dedicated kiosks at Family Justice Information Hubs could give access to

court forms generators in an environment where personal help is at hand and

users can be linked to alternatives to litigation and to other services.

Although a judge normally makes an order at the hearing, it cannot be

enforced until a written order is prepared by the parties or their lawyers,

signed by the court and entered in the court’s records. There can be a long

delay between the time that the judge makes the order and the time that it is

entered and can be enforced. This can cause problems for the parties. For

example, it can delay enforcement of a support order because the order cannot

be registered for enforcement with FMEP until it has been entered.

In addition, orders can be difficult to understand. This can cause problems for

the parties and for others who need to know what the order means in order to

comply with it or enforce it.

"Auto orders" are intended to improve the court process by reducing delay

and making orders easier to understand. The system uses a data base of

common clauses that have been put into plain language to make sure that the

orders are clear and easily understood. The court clerk prepares the order on

the spot (by filling in the blanks in the appropriate standard clauses with the

details of the order) as soon as the judge makes the order and it is printed in

the courtroom. The parties (or their lawyers) leave the courtroom with a

signed order that can be entered immediately. Manitoba successfully uses an

auto orders system in support cases in its unified family court. There are pilot

projects underway in BC to test the use of technology to speed the production

of court orders.

Provincial Court. This is described as the first phase in the development of an "electronic

court registry" to provide court services via the internet.

When lawyers have to attend court for simple matters, and spend a long time

waiting for their turn, the cost to clients can be significant. Court appearances

by telephone are not new and with technology that is available now, could be

used more widely in family cases.

In many US jurisdictions, lawyers schedule "CourtCall" appearances instead

of going to the court in person, for telephone hearings where no evidence will

be called. There is a charge of about $50 per use, but the lawyer’s total fee is

reduced because there is no need to leave the office. The lawyer simply dials a

toll-free number, uses an access code, and then is free to continue at work

until the case is called. The service is provided by a private enterprise, with no

public funding.

Videoconferencing is another technology that may cut down on the cost of

court appearances, including the taking of evidence. Facilities now exist in 34

court locations. BC courts have used videoconferencing extensively for

appearances in criminal cases but less frequently for family matters. It has

tended to be used to facilitate the appearance of witness, not parties. In family

cases, cost has inhibited the use of videoconferencing but as costs come down,

cases.

litigants, to file court forms by email or over the internet.

cost of legal representation and enhance access to the courts, for example,

by expanding the use of appearances by telephone or videoconference.

In the next chapter of this report we strongly urge a move towards a single

court for family law cases. Whether this can be achieved in the short term or

not, there is no good reason why there should not be a single set of rules and

forms for family cases, regardless of the court in which they are filed. Ontario

circumstances than in BC. Relevant rules can be found at http://www.familycourt.gov.au/

has only one set of family rules, which apply to all family cases in its Unified

If two courts are to continue to handle these cases, the procedural changes we

recommend will streamline procedures in both courts and still allow for

discovery and other processes that may be needed in more complex matters.

The rules should be comprehensive and "stand alone"; that is, they should not

require a person to refer to other rules, such as the general Supreme Court

Rules. This is needlessly cumbersome and complicated.

We do not propose any change to procedures for child protection cases under

that these cases are not legal disputes between parents and government, but

rather a search for a solution in the children’s best interests. For this and other

reasons, a special set of rules was developed. They work quite well and there

family rules either include the CFCSA rules or be harmonized with them.

Rules for Supreme Court are developed by the Attorney General’s Rules

Revision Committee, which includes judges and lawyers. The Provincial

Court judges develop rules for that court in consultation with the Ministry of

Attorney General. The rules that we are proposing will require a similar

approach, by people with considerable experience in family law and a

commitment to a new approach to dealing with family cases.

BC, a single, stand-alone set of rules be adopted to govern all family law

cases (except child protection matters) in whichever court they are filed.

Committee to be responsible for developing and maintaining a single set

of family rules, with representation to include judges, lawyers, the

Ministry of Attorney General, court users and one or more members of

the existing Rules Revision Committee.

There are different ways to hold a trial or hearing and some are better suited

to family cases than others. BC’s Supreme Court and Provincial Court each

use an approach that is quite different from the other.

Historically, hearings in BC Supreme Court have been adversarial in nature,

based on the presumption that both sides are represented by lawyers who

present their clients’ cases in the best light possible while exposing

weaknesses in the other side. Hearings tend to be more formal, with rules of

evidence strictly applied. "It is essentially a due process model of decisionmaking,

party driven, with extensive pre-trial disclosure. The parties are

masters of their own rights, deciding how to prepare and present their case to

an impartial, detached decision maker, with ample pre-trial opportunity to

By contrast, Provincial Court family law hearings are usually less formal. Provincial

Court judges generally take a more active role, intervening more freely to control

and direct the hearing though it remains an adversarial process.

In cases where the best interests of a child are at issue, we see judges in both

courts most inclined to actively involve themselves to ensure that all

necessary evidence is put before them as fairly and completely as possible.

Two considerations support a shift for all family cases toward less formal hearings:

for personal injury and commercial cases is too inflexible to address the

interpersonal relationships and emotional content of family litigation.

litigation is out of proportion to the monetary value of what is at stake.

The particular benefits of procedural flexibility for issues touching on the best

interests of children are widely recognized in this and other jurisdictions. For

example, the Family Court of Australia is now testing a "Children’s Cases

Special rules provide that:

procedural conventions are eliminated;

or their relationships;

location, the issues to be determined, the evidence to be called and the

manner in which the hearing is conducted;

objection, with the judge ultimately determining the weight it is to be

given;

and the parties, their lawyers if any, and witnesses, and it is up to the judge

whether, and under what terms, cross-examination is permitted.

People who appear in court without lawyers can be at a loss if they have sole

responsibility for presenting the case; they welcome helpful intervention by a

judge, and can benefit particularly from trial preparation conferences where

they can receive guidance about what evidence they should present and how

best to do it.

For nearly all family cases, quicker and less formal procedures can enhance

access to court without compromising fairness. Sometimes described as a "get

to the merits" approach, a less formal and more flexible hearing model would

complement simplified forms and expedited pre-hearing procedures discussed

earlier. The hearing itself would be actively managed by a judge who exerts

considerable control over when and how evidence is received.

Active judicial management of the process is much easier to achieve if one

judge is assigned responsibility for all matters concerning a particular family.

A one family/one judge policy has other benefits as well:

applications not only provides continuity, but also a way of holding

parents accountable for their behaviour.

become familiar with the case, but parties who understand that a judge

who knows their history will be hearing subsequent applications may be

slower to return to court unnecessarily. They will also be better able to

predict the likely outcome, which should help them to make their own

arrangements without the court’s involvement.

Department of Justice Canada, 2003

giving and indeed encouraging broad judicial freedom to intervene and

direct the hearing process.

tested in BC for cases where the best interests of children are at issue.

family/one judge policy.

views of the child when determining the child’s best interests, if appropriate.

This does not mean that a child should be put in the difficult position of siding

with one parent over the other. In court, it may mean putting the child’s views

before the judge through an expert, or in some cases giving the child the

option to participate directly. Participation, for a child, may mean being given

information about the court process and advice about the consequences of

hearings and orders.

Children may also participate in CDR. These processes may actually be a lot

more flexible and therefore more comfortable for the child.

In 2003 the International Institute for Child Rights and Development (IICRD),

based at the University of Victoria, began a project to examine the issue of

meaningful child participation in BC family court processes. Funded by the

Law Foundation of BC, the two-year project is examining current child

participation practices in custody, access and child protection cases in the

court system. It will identify some of the challenges posed to child

participation as well as ways that these challenges might be addressed.

The project’s researchers have been surveying lawyers and judges, and

consulting with experts to identify current practices locally, nationally and

internationally. They are also talking with children, lawyers and judges. We

Columbia) also sets out the right of a child who is capable of forming his or her own views to

express those views freely and have them given due weight in matters affecting the child,

particularly in judicial and administrative proceedings.

are advised that the information gained so far suggests that there are many

options for involving young people: they can share their views in family court

proceedings through affidavits, expert assessments, their own legal counsel, or

by speaking directly to judges or decision makers. But the reality is that child

participation in court processes is not the norm.

The literature in this area says that children themselves often want to have

their views considered. Some children feel that no one listens to them and

they need an opportunity to be heard. Adults sometimes worry about making

children feel that the outcome of a case could be "their fault," but discussions

with young people suggest that it is often better for more information to be

shared. When information is not shared and decisions are made that do not

please everyone, children often end up blaming themselves. As well, children

sometimes have information that no else has, and parents or other adults do

not always know what is important to a child.

The IICRD project findings will be available in its final report to be released

in the fall of 2005.

discover children’s best interests and to make them a meaningful part of

family justice processes.

considered by family justice system policy makers and other stakeholders.

The provincial government charges a fee for starting a court case in BC

Supreme Court and for filing certain documents with the court. There is also a

daily hearing fee that applies to trials. These fees apply to all cases, including

family matters. Cases that go to trial or use substantial court time are

significantly subsidized.

In Provincial Court there are no fees for family law cases, to make it easier for

people to take their family disputes to court. The proposals in this report

would make it easier for people to resolve their disputes themselves.

Relatively few should need a decision by a judge.

We think that court fees can support the principle that people are responsible

for resolving their family law disputes, by encouraging them to try to resolve

their disputes without starting a court case. Fees also can support the principle

of proportionality, by encouraging people to use no more than the services

than they really need.

These fees could be applied to help support the cost of expanded front end

information, referral and consensual dispute services. In some places,

governments add a surcharge to court fees, which is used to help pay for other

dispute resolution services.

We believe that there should be fees for using the court for family disputes,

whether BC adopts a single family court or not. Just as we propose a single set

of rules and a single hearing model if family court continues in both courts,

we believe there should be a single set of court fees. And, when fees are

levied, they should more accurately reflect the actual cost of using the court.

This would mean charging fees in Provincial Court for family law cases for

the first time. Some will see this as a barrier to access to court. The current fee

structure in Supreme Court may also be a barrier for some. Our belief is that

what is important to families is access to an effective way to resolve their

disputes. Under the system that we propose, this will not usually involve

going to court.

We recognize that there may need to be exceptions for certain types of cases,

such as child protection cases. We also recognize the importance having

courts that are financially accessible to people who need to use them. Any

changes to fees will have to include ways of making sure that people who

need to go to court are not barred because of cost.

and

no more than the services that they really need.

actual cost of using the court and be applied to help support the cost of

expanded front end services.

There sometimes is confusion over the term "court costs." The money a

person must pay at the courthouse to start a case, file documents, or have a

may order an unsuccessful party to pay to a successful party at the end of a

case to help compensate for some of the successful party's legal expenses.

In Supreme Court, court costs are available to a successful party but orders for

costs are uncommon in family cases. Judges are often reluctant to order costs

because the current rules and structure encourage the use of litigation and in

some cases, people have no option but to go to court. With the changes that

we propose, it should be much easier to avoid litigation and costs should be

used more aggressively if the courts are used unreasonably.

If a party makes an offer to settle that is accepted, the general rule is that

neither party is entitled to costs up to the date the offer was delivered, but the

party making the offer is entitled to costs from that date.

If a party makes an offer to settle that has not expired, been withdrawn or

accepted, and then obtains a judgment at least as favourable as the terms of

the offer, that party is entitled to costs up to the date the offer was delivered

and double costs from that date.

We believe that judges' authority to award costs has an important role to play

in encouraging people who go to court to use the court process efficiently and

effectively. If British Columbia continues to use two levels of court for family

cases, the authority to award costs should be extended to Provincial Court

judges so that all family cases can be treated similarly.

imposing cost consequences for unreasonable settlement offers.

authority to award costs be extended to Provincial Court judges.

People like to think of an agreement or order as the end of the dispute. Too

often, though, it is only the beginning of a long battle to see that its terms are

honoured. Once people have an agreement or an order, they are pretty much

on their own to try and figure out how to make it work and what to do if there

are problems. In fact, failure to live up to the terms of an agreement or court

order is typically the major focus of continuing conflict between separated or

divorced spouses.

unnecessarily, the judge may order that person to pay the expert’s expenses: Provincial

Court (Family) Rule 11(8) and Provincial Court (CFCSA) Rule 4 (10)

We need a system where families can get help, if they need it, to resolve

problems as they arise. Just as we have proposed that people should not have

to go to court to resolve their family disputes in the first instance, people

should not have to go to court to resolve problems with parenting or support

agreements and orders after they have been made.

The Family Justice Information Hub has just as important a role to play at this

stage as it does at the beginning of a family conflict. When an order or

agreement is made, if people do not have lawyers, staff at the Hub will be

available to explain their obligations under the order or agreement, the

availability of programs to help them comply, the consequences of not

complying and what to do if the other parent does not comply.

We discuss enforcement of parenting arrangements (custody and access) first,

and then enforcement of support obligations. There are some common

elements and parents may try to link the two, but we see them as raising very

different concerns.

Research tells us that disputes over parenting arrangements are more likely to

occur in circumstances of ongoing extreme hostility between parents who

have not been able to separate their roles as parents from the unresolved

conflict in their relationship. Disputes can erupt over seemingly minor issues

such as telephone access, one-time schedule changes or vacation planning and

can result from a parent’s need to punish the other or control the other’s time

with the child.

Only a small percentage of family disputes involve such high conflict but

because these couples return to court frequently, they use a disproportionate

amount of the court’s time and resources. Along the way, they also use up

their own financial resources, reinforce their negative views of each other and

subject their children to harmful conflict. Some of these cases involve family

violence.

Legal remedies will not resolve difficult compliance cases in a way that serves

children’s interests because they do not address the underlying conflicts that

drive these cases into court. "Punitive enforcement measures by courts do not

Studies have identified "markers" that can help to identify high conflict cases.

Examples of such markers include: the desire of a child not to visit a parent;

repeated unsubstantiated allegations of poor parenting; family violence;

numerous court applications; a large amount of affidavit material; and a

Justice Canada, (2002).

builds on this research.

If these families can be identified and helped even before the first agreement

or order is made, it may be possible to reduce or avoid later enforcement

problems. Assessment at an early stage can identify the resources most likely

to help high conflict couples resolve their problems. Not all families need the

same kind of help, so a wide range of services is essential. All organizations

delivering family services, including the Legal Services Society, should be

responsive to the unique needs of high-conflict families. For example:

Parenting After Separation to help parents understand and meet their

children’s needs, but the parenting skills needed in high conflict situations

are different than where conflict is low and parents can communicate

"Special Master") is a neutral person, appointed by a judge, who helps

people resolve parenting disputes, provides education and advice, and with

prior approval of the parents and the judge, makes decisions within the

scope of the order of appointment. Parenting coordinators are highly

qualified mental health professionals, mediators or family law lawyers with

experience in problem solving, mediation, communication, family law,

adult psychology, developmental psychology and children’s adjustment

issues. Experience in the US shows that a skilled parenting coordinator can

effectively help parents build workable, long-lasting parenting relationships

issues surrounding parenting coordination that need to be addressed, but we

believe this is a valuable service that will help high conflict parents develop

the most effective parenting arrangements for their children in the least

contentious way.

for adults and for children. Some counselling models may overlap with

mediation. Most provide information about legal options, help parents make

their own decisions and give them an opportunity to resolve their disputes.

Programs for children help them learn healthy coping skills.

Department of Justice Canada, 2004. p. 28.

parents with higher levels of conflict are taught different parenting strategies.

cases where there has been family violence. These parents may, however,

series of sessions combining therapy and counselling and includes the

whole family.

examination. It helps high conflict families manage their child contact

(access) arrangements and focus on their children’s needs. The program

works with families trying to establish contact arrangements both before

and after a court order. A variety of child-focused interventions include

group work, education, counselling, mediation, supervised access and

exchange, and case management. Information from children is provided to

parents with the children’s consent, at the parents’ sessions. A 2002

evaluation found that feedback to parents on what their own children say

about the effect of the conflict on them is often the most powerful element

of the program and can be the impetus parents need to change their attitudes

and behaviour. It also found that adult groups including men and women,

and custody and access parents are useful, and that activity-based group

sessions for children can help them feel less isolated.

Access denial is unquestionably a problem for some parents. Research

legal remedies for non-compliance are

fine, jail or both, or

can result in a fine, jail or both.

Neither of these is used very often.

Some provinces have additional statutory provisions for dealing with noncompliance.

Some aim to try to encourage compliance through parent

education or mediation.

the very limited circumstances in which non-compliance with a parenting

Department of Justice Canada, (2001).

order may be justified, for example, when necessary to protect the health and

could be considered to make it clear that judges may order, for example,

attendance at a specialized parenting program; or appointment of a mediator

or a parenting coordinator. Initiatives in other jurisdictions should be

reviewed as well, for further options.

both before and after an agreement or order is made.

families be identified as early as possible and provided with specially

targeted dispute resolution services.

offering services to high conflict families.

earmarked and assigned to a judge who will hear all subsequent

applications in the case.

when a compliance problem arises with respect to an agreement or order.

appropriate cases.

People who are experiencing, or even just considering separation or divorce

need information about financial issues. After separation, the expense of

supporting two households is a strain for most families and people need all the

help that they can get. If budgeting and debt management were among the

problems that led to family conflict in the first place, separation will only add

to the family’s financial difficulties.

One of the functions of the Family Justice Information Hub should be to

provide information and referrals so that people can get help with:

Workshops modelled on the Parenting After Separation program could deliver

useful information and help people to identify and use other resources. We

believe that enhanced budgeting assistance at the front end would reduce

support enforcement problems later.

Even if people succeed in negotiating a suitable support agreement, or

obtaining a court order, they often run into problems when the arrangements

no longer fit the family’s changing circumstances.

For example, over time, a child’s needs typically increase and a paying

parent’s income may increase or decrease significantly. People are often

hesitant to try to renegotiate an agreement, or to go to court for a new order

because the cost of doing so may be out of proportion to the potential benefit.

The Comprehensive Child Support Service, started as a pilot project in

February 2002 in Kelowna, offers an array of services to help parents obtain

or change a child support order or agreement. A Child Support Officer can

help parents understand the child support guidelines and calculate what is

payable under those guidelines. If both parents agree, the Child Support

Officer will work with them to negotiate a child support amount. The officer

will also refer parents to other professionals such as an outreach worker from

the FMEP or a Family Justice Counsellor, or to other programs and services,

such as Parenting After Separation, financial management, legal advice and

debt counselling.

resolve their child support issues. They appreciated the one-on-one contact

with the Child Support Officer and not having to repeat their story multiple

times to different people. Referrals were effective in meeting parents’ needs

for further services and everyone who took advantage of facilitated

negotiations offered by the project was able to reach an agreement. The

service now operates in Kelowna, Surrey and Vancouver.

Keeping child support amounts up to date can go one step further, to an

provincial child support service to recalculate amounts at regular intervals,

based on updated income information, using the child support guidelines.

Prince Edward Island and Newfoundland and Labrador have recently begun to

operate child support recalculation services. They recalculate child support

each year, based on updated information about the paying parent’s income.

This means that parents do not have to go to court to ask for a variation of a

court order. Children benefit from increased support when the paying parent’s

income goes up, and if it goes down, the parent benefits from an order that

more realistically reflects his or her ability to pay.

This approach should reduce the number of orders that go into arrears and

need to be enforced, as well as the number of court applications for increases

in child support.

The Ministry of Attorney General, with funding from Justice Canada, plans to

test and evaluate a recalculation service in BC and we support this move.

When a parent or spouse does not comply with the terms of an order, the

options include private enforcement or enforcement through FMEP. Private

enforcement can be expensive for the user; FMEP is expensive for the public.

The FMEP, a service of the Ministry of Attorney General, is responsible

support orders and agreements that are filed with it.

Some provinces have stepped up their enforcement mechanisms and will, for

example, cancel the driver’s licence of a person who defaults on support

payments. BC will decline to renew a licence at the expiry date. Some

provinces will recognize enforcement from another province, so that a person

in default cannot move across a provincial boundary and obtain a new licence.

provinces to determine how best to expand the options available for

enforcing family support obligations.

In spite of the increasing availability of CDR, and the growing awareness of

its advantages, many families end up using the court system. One reason is

that they are compelled to, by our family laws.

The two foundational statutes, from which most of our family law derives, are

out of step with the principles and values endorsed in this and most other

family law reform reports. Reform of our family justice system will not be

As currently drafted, these statutes stand in the way of reform because they:

and defend, escalating conflict and causing emotional harm;

through CDR.

can only be changed by the federal government.

In 2002 the federal government introduced a bill (Bill C-22/2002) in

making parenting arrangements that best meet their children's needs. That bill

died on the order paper when Parliament adjourned before the 2004 federal

election.

territorial committee called the Coordinating Committee of Senior Officials -

Family Justice. BC actively participates on this committee, along with

representatives from all provinces and territories and the federal government,

to address family justice issues.

To encourage people to genuinely try to resolve their disputes before

considering court as an option, we need to change the provisions that require

court action is not started in time:

1. A stepparent can be required to pay support for a stepchild only if the

claim is made within one year after the person’s last contribution to the

2. A common law spouse can be required to pay spousal support only if the

away from a system in which litigation was the primary form of decision making and to

make cooperative dispute resolution the primary option. This objective is specified in the

contributed to the child’s support for at least a year, and if the court proceeding is begun

within a year after the person’s last contribution.

3. A claim for division of family assets or variation of a separation

agreement can only be made within two years of divorce, judicial

These provisions must be amended to give people some other way to preserve

the right to begin an action if CDR fails. One possibility would be to include

in these definitions a person who has agreed in writing to extend the time

period.

Another approach, as suggested in our table of proposed rule changes above: a

simple one page document called a "Notice to Preserve Limitation" which

would identify the parties, provide brief information about their relationship

and describe the right or claim to be preserved. Filing the notice at the court

and serving it on the other party would stop the limitation period from

running. This would preserve legal rights and give the parties an opportunity

to pursue a cooperative resolution while avoiding the cost and potential

limitation period without starting an action or seeking a court order, by

agreeing in writing or filing and serving a "Notice to Preserve

Limitation."

spouse’s interest in family assets at the date of what is referred to as a

"triggering event." The triggering event is defined by s.56(1) as the first of

any of these events:

requires the starting of a court action);

together for at least two years, if a court proceeding is begun within a year after they

stopped living together.

who applies within two years of the divorce, judicial separation or annulment.

The only triggering event that does not require court involvement is a

law is unclear. If separation agreements, for the purpose of s.56, were defined

to include written agreements as to the date of the triggering event, people

could go on in confidence to try to resolve their issues without starting a court

action.

definition of a triggering event, a written agreement by the spouses to set

the triggering event at an agreed upon date.

making agreements about ownership of assets either during their relationship

or at its end. Before this section was enacted, such an agreement was a

contractual arrangement and if a judge were asked to review its terms the

review would be on the basis of contract law. Now, these agreements are

reviewable for fairness, on the same basis as if the people were legally

married.

Many common law couples want to use an agreement to confirm separate

property status, but if they sign an agreement about their property it will be

measured against the principles of a joint property regime. Therefore, many

lawyers now advise common law couples not to sign an agreement. The result

is that s. 120.1 deters common law couples from making private agreements.

5 and 6 of the Act do not apply to an agreement by people who are not

married to each other unless the agreement specifically provides that

those parts do apply.

Applications to vary separation agreements constitute a significant portion of

the family cases that go to trial. In British Columbia, judges have considerable

discretion to vary agreements. This promotes litigation because people have

reason to think that a judicial decision might leave them better off than under

the terms of their agreement. It also serves as a disincentive for some people

to conclude an agreement, since there is no certainty or assurance of finality.

Other provinces’ laws provide for more certainty in separation agreements by

limiting the authority of judges to vary the terms. We support the private

ordering of family arrangements and suggest that serious consideration be

given to a statutory limit on judicial discretion in this area. This change would

be consistent with the shift in public expectation that we advocate—that

people will take responsibility for resolving their own disputes.

limit judicial discretion to vary the terms of a separation agreement.

factor to be considered in deciding whether to remove children from their

which governs disputes between parents. Changes to the definition of "best

interests," to include consideration of family violence in the determination of

including its impact on the safety of the child and other family members.

These recommendations would help bring the statutes on which our family

law is based into line with the new ways of thinking about family dispute

resolution that this report proposes. We hope that everyone with an interest in

the family justice system, and especially the lawyers who work in this area

and their provincial and national organizations can work together to make this

happen.

these laws reflect the principles and cooperative values identified in this

report;

section, support this work at the federal level.

parliament adjourned before the 2004 federal election See:

http://www.parl.gc.ca/LEGISINFO/index.asp?Lang=E&Chamber=N&StartList=A&EndList

=Z&Session=11&Type=0&Scope=I&query=3276&List=toc-1

We have been asked to examine possible models for organizing BC’s family

justice system and in particular to consider whether a unified family court

("UFC") is the preferred model for our province. This part of our Report

examines the organization and structure of our existing family court system

and considers some alternative models.

The focus of our work, and of this report, has been on services to families and

on the transformation of our family justice system to one based on values of

cooperation and the promotion of the wellbeing of family members. This

approach, described in the earlier chapters, leads us to the conclusion that a

unified family court, however it may be achieved, is the ideal forum in which

to foster this new family justice culture.

If we were starting today with a clean slate to design a court system to serve

the needs of separating families in British Columbia, it certainly would not

look like the system we have. In addition to making it more fundamentally

cooperative, we would create a single level of court offering a variety of family

support services and simplified procedures at locations throughout the

province. In fact, the single court or unified jurisdiction model has long been

discussed and recommended in BC, but for historical reasons rooted in the

Constitution and in federal/provincial funding arrangements, it has never

happened.

What we have instead is two separate but parallel courts, with duplication and

overlaps in services and jurisdiction that are confusing to the public and

wasteful of scarce resources. The Provincial Court, with provincially

appointed judges, handles more than half the family cases in BC and is

relatively accessible, but it cannot grant divorces or order the division of

family property. Nor can it grant injunctive relief or exercise equitable

jurisdiction. Some people experience delays and repeat appearances in

Provincial Court. The Supreme Court, with federally appointed judges, has

full family law jurisdiction but has fewer locations and more complex and

usually more expensive procedures.

In terms of jurisdiction and accessibility the two courts compare generally as

follows:

Jurisdiction, or

issues heard

Custody & access

Guardianship

Child support

Spousal support

Maintenance enforcement

Paternity

Restraining Orders

Child protection (CFCSA)

Custody & access

Guardianship

Child support

Spousal support

Maintenance enforcement

Paternity

Restraining orders

Adoption

Division of family property

Occupancy of family home

Divorce

Parens Patriae

Contempt

Procedures Less formal; fewer rules More formal; more rules

Forms "Fill in the blanks" require drafting, & legal

knowledge

Court fees No charge to file an

application

Fees payable (e.g., $208 to

file application)

Locations with

permanent judges

33 11

Locations served

by visiting judges

55 30

Part-time judges 18 16

The Provincial Court is more accessible to families in a number of ways.

registries and sitting judges in many of BC’s smaller communities in

addition to the larger centres that are also served by the Supreme Court.

more accommodating to the many people who come to the justice system

without lawyers to represent them.

filing an application in Provincial Court and no hearing fees. It is easier for

people who cannot afford a lawyer to represent themselves in Provincial

Court than Supreme Court.

On the other hand, the Supreme Court has advantages for people who are

represented by lawyers, and for cases dealing with complex financial matters.

The Supreme Court offers more opportunities for each side to learn about the

other’s case before trial and the opportunity for a very thorough hearing if that

is needed.

As a result of this two-court system, we see:

volume of family law work.

courts and to know which one to use;

because it is easier for them but later must apply to Supreme Court for

property division or divorce;

jurisdiction of two courts, there is the cost of maintaining two parallel

systems of courts with their own physical facilities, and their own rules,

forms, and administrative structures;

support order can be delayed if a party asks at the hearing for a change to

the order. (The order can be enforced in Provincial Court but it can be

changed only by the Supreme Court.)

The 1992 B.C. Report "Breaking Up is Hard to Do," found that most people

who had started through the family court process were aware that two levels

of court exist to deal with family law matters, and:

They found this confusing, frustrating and expensive. The general consensus was

that if major changes can’t be made to the current court structure, at a minimum

there should be one court dealing with family matters. This court must be easy to

a one court system—the Unified Family Court. Initially envisioned as "a

specialized court with specialized judges operating under special rules to meet

jurisdiction")

The value of unifying jurisdiction, simplifying procedures and providing

additional services for families has been considered and endorsed in reports going

family matters in its superior court. The superior court in Quebec is described as having

exclusive jurisdiction over family matters—divorce, annulment, separation, support, child

custody, property. However, child protection and adoption are dealt with in the Court of

Quebec, Youth Division (a provincial court).

report prepared for the Ontario Ministry of Attorney General, p.22

in their support for the basic concept of unified family law jurisdiction.

However, as sound as the theory of a unified family court is, implementation

can be problematic. Inadequate funding and restricted implementation have

stood in the way of these courts meeting expectations in some provinces.

Inadequate funding can result in delay, backlog and lack of necessary support

services. Implementation in only certain regions of a province can undermine

the objectives of access and simplicity: where the province had two courts for

parties to choose from before implementation, it now has those two plus UFC.

In BC, implementation of UFC would need to successfully address three

particular concerns:

current courts, especially in terms of geographic reach. This is a particular

concern in British Columbia where much of the population is located in

smaller centers distant from large urban areas.

Provincial Court typically provides informal and relatively inexpensive

resolution and has extensive experience in child protection cases and

parenting issues. Supreme Court involves greater formality and procedural

complexity, at higher cost, for cases where, often, more money is at stake.

These two courts have distinct styles and cultures. A UFC would need to

reconcile these differences while remaining at least as responsive and

adaptable as the existing system, if not more so.

enhanced family services the shift from an adversarial to a cooperative

culture cannot be made and the family court can not meet its mandate.

support for the theoretical aspects of the unified family court model. A report from the

Provincial Court, for example, states that the public interest favours the amalgamation of all

family cases into one court. It concludes that this would create efficiencies and avoid

undesirable duplication of proceedings. The Supreme Court states that a unified family court

model could provide an effective family law process in BC as long as there is a commitment

to provide sufficient judges, sufficient support resources, and province wide coverage.

provinces to establish unified family courts.

essential attributes:

incorporated to the extent possible, into whatever family court structure

BC has.

adopted. It should. The real question is: what should it look like and how do

we get there? In other words, which UFC model can work for BC, and how

can it be implemented? There are different ways to establish unified family

jurisdiction. This report considers three possible approaches.

removes jurisdiction over all family matters from the provincial courts and

left with the superior (federally appointed) courts.

and Provincial Court judges are given the same family law jurisdiction as

Supreme Court judges.

structure keeps the two existing courts in place but coordinates and

integrates their work. Provincial Court judges are appointed as Supreme

Court Masters and are given increased, but not full, family law

jurisdiction.

We will discuss each of these options in turn, but first we offer a brief

justice reform in Canada.

appoint superior court judges, but judicial interpretation of this section has

made it more than an appointing power. It has been used to protect the core

jurisdiction of the superior courts, so as to provide a constitutional base for

national unity through a unitary judicial system.

The Supreme Court of Canada has developed principles to ensure that s. 96

would not be rendered meaningless by the provinces giving their provincially

appointed judges the same jurisdiction and powers as superior courts. In other

words, not only does s.96 restrict the power of the provinces; it constrains the

federal government from delegating any jurisdiction that falls within the ambit

of s.96—that is, those powers that were exercised by superior court judges at

the time of Confederation.

divorce and property, so the province cannot assume jurisdiction over family

property matters.

Provincial Court judges concurrent jurisdiction to make a wide range of

orders in family cases, including orders affecting property rights. That

Supreme Court of Canada upheld the Provincial Court’s authority to make

guardianship, custody and access orders, but found that property matters are

only for superior courts to consider so it was beyond the power of the

provincial Legislature to authorize the Provincial Court to make orders

concerning family property.

The consequence of this is that if any province wishes to put all family cases

in a single court, the only option is a superior court. The practical difficulty is

that superior courts are not as accessible as provincial courts, in terms of

geography, procedure or cost.

This model, already implemented to varying degrees in seven provinces,

establishes a single, unified superior court dedicated to family law, funded

These provinces have worked with the federal government to "unify" the

and putting all cases into a superior court presided over by federally appointed

judges. Judges are assigned for a lengthy term, or permanently, to the court

and are, or become, family law specialists. The goal of a user-friendly court

culture is further supported through extensive family services and simplified

rules and forms.

contribution consists in relieving the province of the cost of provincially appointed family

court judges (75% of whom are appointed from Provincial Court ranks) by paying the

salaries of the s. 96 UFC judges. The provinces allocate their salary savings to collateral

family services such as mediation and parent education programs, which other federal

programs also support.

Scotia exclude youth criminal justice matters from the UFC.

Manitoba, New Brunswick and Prince Edward Island have used this approach

to implement UFCs province wide. Saskatchewan, Ontario, Nova Scotia and

Newfoundland and Labrador have UFCs in some locations, though Ontario

In some provinces, and in many respects, this model for achieving UFC

appears to work well enough, but there are problems. It is difficult to

accurately generalize about its overall effectiveness because:

it differ from province to province; and

structure and local legal culture vary significantly from province to

province and can affect the success of implementation.

We certainly can learn from the other provinces, taking care to avoid

implementation issues that have arisen elsewhere. Some weight must

undoubtedly be given to the fact that seven out of 10 provinces have already

adopted this model but reviews vary and there is little by way of formal

evaluation or objective study and no client surveys.

Reports out of Manitoba are positive: the Manitoba Bar feels there is greater

consistency in family law decisions under UFC and that they can rely on a

higher level of knowledge from the bench. There are reports that UFC has

resulted in better case management, a more adaptable court, improved

integration of the helping professions, and an enhanced status for family law.

Professor James McLeod’s recent paper on the Ontario UFC system

concludes that although there have been some problems, on balance the

McLeod says these courts have met with mixed reaction across Ontario. The

Ontario government is committed to unified family court expansion. The

benefits of a single forum for the resolution of family law matters, coupled

with the provision of appropriate services, are clearly recognized by the

province and have received broad public support. At the same time, some

Ontario counsel have expressed concerns about backlog, delay and shortage

of services.

agreed that a court with comprehensive jurisdiction for family law was better than the

previous system. Only one person disagreed with the concept of specialist unified family

court judges and a majority was not in favour of assigning General Division judges, even

temporarily, to the unified family court.

Reports of delay and lack of services from Nova Scotia and Newfoundland

and Labrador show how the potential strengths of the UFC model can be

compromised by lack of funding. In Nova Scotia, where UFC was established

in 1998, there is a common view that it is probably a superior model, but it

struggles with delay and backlog because it has been inadequately funded

since implementation.

Nova Scotia have concerns with respect to delay. The problem in Ontario is

sometimes linked to the transition of child protection work from the provincial

Besides provincial variations, different user groups can have different

perspectives on UFC. For example, lawyers almost unanimously endorse the

specialized family bench, but many judges are concerned about the potential

for burnout and isolation.

Opportunities to implement this model depend on adequate federal and

provincial funding. Federal money has been made available several times in

the last 30 years. An offer of federal funding for UFC expansion that was

funding offer is made in the future to support this superior court approach to

implementation, should BC accept it?

"…the adoption of a specific court structure will not of itself ensure that family law

is properly administered in the province. In fact, the establishment of an underresourced

unified family court would lose the benefits of both courts now involved

in family law and would not achieve the benefits associated with the unified family

The test for adequate funding will be whether combined federal and provincial

contributions can provide:

1. the information, assessment and referral programs recommended in

Chapter 3 (the Family Justice Information Hub);

family court under this proposal, a federal dollar would be taken away from funding for

existing provincial family programs. Earlier federal unified family court funding programs

did not involve a similar penalty.

2. enough judges and staff to ensure that cases can be heard in a just and

timely manner; and

3. province wide implementation within a reasonable time.

say, seven locations capturing about half the family law cases in BC—a

reasonable working estimate of what the first phase of implementation would

look like—might free up about $2 million in Provincial Court judges’ salaries

to be applied to family services. If this were the extent of the financial

incentive for using the superior court model, it is probably not adequate by the

above definition. While an additional $2 million would always be welcomed,

it is not, in relative terms, a large sum. To put it in perspective, the existing

Family Justice Counsellor Program costs $10-million per year, the FMEP

costs $15-million and LSS already spends nearly $3-million per year on

family duty counsel.

Further on the point of adequate funding, McLeod links concerns about UFC

to insufficiency of judges to staff it:

Most practicing family lawyers welcome the unification of jurisdictions in principle

but have concerns about staffing in particular. By far, the greatest source of

complaint seems to involve the staffing of the Court. It is trite to state that the

success of the court depends upon the provision of adequate resources to address the

Province wide implementation does not mean that a UFC should appear

overnight in every location in the province, but it does presume that it would

be available to all British Columbians within a foreseeable period. Under the

superior court model, implementation occurs in stages. Staged implementation

would be acceptable. In fact, one advantage of staged implementation is that it

allows the new structures and procedures to be tested on a smaller scale, and

mistakes to be rectified as implementation proceeds. However it would only

be acceptable if the duration of the implementation process is reasonable, say

not exceeding five to seven years.

Any consideration of province wide UFC implementation must be tempered

by a realistic recognition that there are some practical limitations on the

affordability and universality of many government supported services. Not

every community across B.C. has the same services, and many specialized

services in the areas of health, education and law, for example, are only

available in or through larger population centres. A balance must be struck; an

"all or nothing" approach to province wide UFC implementation would result

in nothing.

In Nova Scotia UFC is now available to about 75% of the population. The

Ontario example is more troubling. Ontario began with one location in 1977,

added four in 1995 and 12 more in 1999. UFC is now in 17 locations, and sits

regularly in three others, with 34 non-UFC sites remaining. One commentator

observes that ". . . substantial areas of the province are still without such

courts despite strong urgings that they should be available throughout

Ontarians. Referring to criticisms the Ontario UFCs have attracted, McLeod

says:

Had the Courts been extended to all judicial centers in a more timely fashion or had

it been made clear that all centers would ultimately become unified, some of these

We are concerned about partial implementation over the long term because it

would leave the province with three courts handling family cases and risk

unacceptably disparate levels of service among regions.

How well would the regions be served? We recognize the challenges of

providing specialist "section 96" judges in smaller communities but

experience in BC and elsewhere suggests that there are ways it can be done so

that even remote areas of the province that do not have a courthouse or

permanent UFC judge can have the benefits of a unified family court. Some

options are:

circuit model). If there is to be a specialized bench, the Supreme Court

judge on circuit would need to be both a family specialist and a generalist.

Scheduling could be complex and travel costs high;

communities;

"filing centres," which could be, for example, the local Provincial Court

Registry or another designated office;

correspondence with court registry and for serving documents; and

BC is well ahead of many provinces in the use of this technology and

though at present it is too costly to be a viable alternative, it will eventually

prove to be a viable tool for delivering some UFC services to remote areas.

court system is the preferable model, and should be implemented, but

only if the Province is certain that:

responsive to the range of family clients as is our current two court

system.

resources sufficient to provide:

chapter 3 of this report and the subsidy for CDR recommended in

chapter 4;

seven years.

Supreme Court UFC, incorporating the other recommendations made in

this report.

Our Supreme Court and Provincial Court currently serve people in different

ways. The Provincial Court:

hearing;

approach for family cases; and

The Supreme Court:

though they often are not;

hearing; and

it harder to address the unique aspects of family cases.

A question frequently raised by lawyers is whether people would be as well

served if all family cases were heard in a superior court? Would the court

retain the characteristics of the existing Supreme Court process, resulting in

reduced access for many people who now use the Provincial Court? This

involves both a consideration of the procedural options needed to meet

different needs, and recognition that the trend towards settlement processes in

family law litigation means that judges need new skills.

We must pay careful attention to this question. If a new family court fails to adopt

the attributes and commitment needed for a problem solving approach, then it fails

entirely. A BC unified family court should provide all of the services of the two

existing courts and yet look quite different from each of them. It must provide a

range of simplified procedural options for families whose financial circumstances

range from the simple to the complex. At the same time, its judges must be active,

informal and involved in the management of family hearings.

ensure that the style or culture of the court meets the needs of all families.

Transition to a UFC necessarily involves change to a new judicial role so that

judges would not choose, and would not be chosen, to sit on this court unless they

were open to the new approach. Further, new, simplified court rules and

procedures together with the closer integration of services for families would give

the judges both the framework and the tools necessary to shift into a new role.

In any event, judges’ approaches towards the management of family cases

have changed significantly over the past several years. Judges on both courts

are to be highly commended for becoming increasingly responsive to the

unique needs of families and to the burdens of cost and extensive procedure.

Family case conferences in Provincial Court and judicial case conferences in

Supreme Court are examples of innovation that reflect an increasingly active

and involved judicial role in the management of family cases.

existing courts while adopting a unique culture, distinct from each of

them. It should provide the simplified procedural options recommended

in chapter 5 and ensure that judges adopt a more active, informal and

involved role in the management of family hearings.

All provinces with UFC include in the court’s jurisdiction all matters referred

to in Table 3 (above at 5.8). For historical reasons, Nova Scotia alone also

includes youth criminal justice cases within its UFC jurisdiction.

Some provinces have experienced delay in processing cases, partly as a

consequence of shifting the responsibility for child protection cases from the

delay, there are other arguments for keeping child protection cases in

Provincial Court. That court has decades of experience with these cases and

generally manages them effectively. As well, many judges feel that there are

strong links between youth justice cases and child protection cases that argue

for both being heard by the same bench. On the other hand, many child

goes directly against the rationale supporting unified jurisdiction to have two

courts involved in family cases. Ultimately, the benefits of fully unified

jurisdiction support the approach taken in other provinces.

child-related cases currently within the jurisdiction of both the Provincial

and Supreme Court, but not youth criminal justice cases.

This model involves both Supreme Court and Provincial Court judges hearing

all family matters in a different form of unified family court. Provincial Court

judges would be given the same jurisdiction as Supreme Court judges over all

family issues. Like the superior court model, this model would also have

services for families.

There are two ways that full family law jurisdiction might conceivably be

accomplished. The first is by dual appointment: one person is simultaneously

appointed by the province, with the entire jurisdiction of a provincial court

judge, and by Canada, with federal jurisdiction limited to divorce and division

jurisdiction over divorce and property division to provincially appointed

judges.

January 6, 2003 Chief Justice Smith said, in reference to the family courts, "we could not

have anticipated that the change in legislation and its application would so greatly increase

the volume of child protection work . . . . tremendous pressure has been placed on the

superior court in order to deal with the increased workload generated by an increase in child

protection cases."

Judicial specialization is discussed further at chapter 7 of this report.

Full jurisdiction is an attractive option because it would simplify

implementation by taking advantage of the many Provincial Court locations

around the province. It has the potential to preserve the flexibility,

responsiveness and province wide accessibility of our current system and to

be less expensive to implement than a conventional s.96 unified family court.

However, there are numerous administrative, legal and constitutional

problems that would need to be resolved before such a model could be

implemented.

From a policy and administrative perspective, for example, if the dual

appointment approach were taken, it could be problematic to have a single

judge appointed to two separate offices, each governed by a different legal

judge is appointed under s.96 he or she is and remains a superior court judge

for all purposes and could not, at the same time, be subject to a second set of

Also, the full jurisdiction model would have the effect of shifting some

portion of the Supreme Court’s family work to the Provincial Court, with

potentially significant administrative and scheduling consequences for both

courts and possible fiscal consequences for the Province.

These and other legal and administrative hurdles would need to be thoroughly

While such an analysis is beyond the scope of this paper, one particular issue

impediment to the full provincial court jurisdiction approach. Although s.96,

on its face, only speaks of a power of appointment, over the years the

Supreme Court of Canada has interpreted it much more broadly, giving it a

functional aspect as well. The section authorizes the federal government to

appoint superior court judges and has been interpreted by the Supreme Court

of Canada to mean that neither the provincial nor the federal government can

confer authority over divorce or family property on provincially appointed

judges. As s.96 is currently interpreted, it is a complete bar to implementation

of a full provincial court jurisdiction model.

The concept of a unified family court consisting of both Provincial and

as well as different rules respecting tenure, removal from office, extrajudicial activities, and

so on.

limited to the pool of Provincial Court judges, and there may be an issue on Canada’s side as

to whether this amounts to an inappropriate fetter on the Governor General's power of

appointment.

Courts, and the Community.

urged a dual appointment approach—the creation of a single court with

complete family jurisdiction composed of Provincial and Supreme Court

possible to confer that jurisdiction on a provincially appointed judge. Its

recommendation 24 reads:

We recommend that, looking to the future, the provincial government should, in

negotiations with the federal government, seek to bring about the joint appointment

of judges to the Unified Family Court. These judges should be invested with

complete jurisdiction by both governments to deal with family matters.

In 1977, BC’s Attorney General proposed to the Federal Justice Minister that

a unified family court be created at the Provincial Court level through a

system of dual appointments. While the Berger Commission Report had

speculated that the federal government might question whether it could

appoint a judge to the Supreme Court for limited purposes, the Commission

had concluded that "A joint appointment of a single judge by the provincial

and federal governments is not, in our opinion, prohibited by the

constitution." However, for reasons including some of those noted above, the

Federal Minister ultimately rejected the proposal as unworkable.

jurisdiction is probably the most practical and efficient method of achieving

unified family jurisdiction in BC. It would simplify implementation of a

province wide unified family court by taking advantage of the many

Provincial Court locations throughout BC. Keeping both courts in the

business of family law meets the challenge of geographic accessibility and

makes optimal use of the existing court infrastructure. It would also simplify

the complex transition phrase that other provinces have experienced (or are

still experiencing after 30 years) leaving them with three different courts

doing family law: unified courts in the larger centres and both provincial and

superior courts everywhere else.

These practical advantages may be sufficiently compelling, particularly if the

superior court model ultimately proves unworkable in BC, to warrant a further

look at the full Provincial Court jurisdiction model. This could be considered

only if a different interpretation of s.96 is possible.

That said, we do note that family law occupies a profoundly different place in

family life and in Canadian society than it did 130 years ago when s.96 was

drafted: the current divorce rate is nearly 40%; a large proportion of unions

now occur without marriage; same sex marriage is recognized in BC; and

second and third marriages and blended families abound. There is virtually no

one in our society who is untouched, directly or indirectly, by family law. The

judge but with jurisdiction limited to family law matters.

social interest in having the most effective and accessible family justice

system possible is enormous.

The full provincial court jurisdiction model confronts many difficulties.

Existing authorities are clearly against an interpretation of s.96 that would

support it, and an array of administrative issues would need to be considered

before its viability could be fully assessed. However, if the superior court

UFC model cannot be implemented in BC, these issues should be explored

and the possibility of the full jurisdiction model more fully investigated.

administrative issues associated with the full provincial court jurisdiction

model be more fully investigated in order to determine if it could be a

viable model for BC.

If a UFC model is not implemented in British Columbia, either through the

superior court approach or through a full Provincial Court jurisdiction model,

then we propose a coordinated jurisdiction approach.

This is not a unified family court. It represents an attempt to achieve some of

the benefits of unified jurisdiction, while leaving the two existing courts in

place, by trying to better integrate and coordinate their work. Different ways

to do this have been explored over the years. The model we have considered

involves expanding the jurisdiction of Provincial Court judges by making

them Masters of the Supreme Court and giving them as much family law

jurisdiction as possible under s. 96.

BC attempted a variation on this theme in a project that operated in Surrey,

Commission had proposed a family court pilot project that would integrate the

work of the Provincial Court and Supreme Court in family matters under one

roof. The goal was to minimize the negative effects of fragmented jurisdiction

Provincial Court judges were given authority to conduct hearings and submit

reports and make recommendations on family matters to the Supreme Court.

Both courts were served by a single administration and by the same family

court counsellors and family advocates. Courtroom and office accommodation

for judges of both courts were provided in the same building.

As it turned out, the Provincial Court authority to conduct hearings and

submit reports and recommendations was not much used and judicial services

continued to be duplicated. Some aspects of the integration were successful

but Provincial and Supreme Court judges did not develop a "team" approach

and, with few exceptions, did not act in complimentary ways to eliminate

"forum shopping" or duplication of administrative and judicial efforts.

Although some aspects of this two-tiered model were considered successful, it

was generally concluded that the negative effects of fragmented jurisdiction

The 1988 Access to Justice Report (the "Hughes Committee") recommended a

different form of coordinated jurisdiction. It proposed that the Supreme Court

have exclusive jurisdiction over family law but:

would be opened as Supreme Court files.

would handle procedural matters, pre-trial conferences, and settlement

conferences in Supreme Court cases and their orders would have full effect

unless set aside or varied by a Supreme Court judge.

a support, custody or access order of a Supreme Court judge.

be integrated and available at both levels.

It was hoped that this approach would bring continuity to the conduct of each

family law case because a separating couple would have one file throughout;

that it would improve access to the Supreme Court throughout the province;

and that it would reduce expense for many people by eliminating the need to

begin proceedings in Supreme Court.

This recommendation was not implemented for two reasons. First, Provincial

Court judges did not wish to assume these functions. More significantly,

perhaps, there were concerns about the constitutionality of provincially

appointed judges varying Supreme Court orders, even with the parties’

consent.

We have considered a third alternative that would combine elements of both

of these earlier approaches. It would:

Supreme Court Division and a Provincial Court Division;

92 This was explained by: lack of opportunity (there were limited appropriate cases); lack of knowledge

and preparation (little effort was made to encourage the use of the provisions); lack of acceptance by

Provincial Court judges (some Provincial Court judges made it clear that they did not appreciate being

given a task that had previously been done as a quasi-judicial function by registrars); and availability of

registrars (registrars continued to handle referrals).

by designating every Provincial Court registry a sub-registry of the

Supreme Court for family law proceedings;

work as possible.

Both courts would retain their current jurisdiction but in addition, Provincial

Court judges would conduct hearings and submit reports and

recommendations on simple property division cases to the Supreme Court for

confirmation. As far as possible, their recommendations would be confirmed

would be narrow.

The court registry would automatically stream cases: contested divorces and

claims for restraining orders, occupancy of a family home, complex property

division, and any other property division case at the request of a party, would

Court division. Some cases could be sent to either division: simple property

division cases, applications for interim or final custody, access, guardianship,

child support, or spousal support orders; enforcement or variation applications

and pre-trial or settlement conferences.

Judges would work together to minimize cases where families appear before

both courts and services would be integrated and available in both courts.

This approach will be worth pursuing only if it is supported by the full range

of front end services that are recommended in chapter 3, and the range of

consensual dispute resolution options recommended in chapter 4. It would

also require the dedication of a number of judges from both courts as family

law specialists, to provide the leadership and continuity that are so essential

for an effective family court.

Our concern is that this approach may be complicated and awkward.

Implementation costs and continuing administrative expense could outweigh

potential benefits and might be better applied toward front end services. We

are also concerned that this kind of approach tinkers at the edges of the

existing structure without introducing the degree of fundamental change that

the family justice system clearly needs. The money and effort that it would

require would be better spent in implementing the unified jurisdiction that is

the next logical step in the evolution of our family justice system.

Nonetheless, if neither the superior court approach nor full Provincial Court

jurisdiction ultimately proves workable for the province, we would urge BC to

necessity of anyone appearing in court.

explore whether some of the objectives recommended in this report could be

met by better coordinating the family law work of the two existing courts.

jurisdiction approach to unified family law jurisdiction ultimately proves

workable, BC explore whether some of the problems arising from split

jurisdiction can be addressed by better coordinating the family law work

of the two existing courts, by:

Supreme Court for family law proceedings;

with as much authority to do Divorce Act work as possible; and

for both levels of court.

Both the full Provincial Court jurisdiction model and the coordinated

jurisdiction approach assume that the Provincial Court has the capacity to

absorb some of the family work now done in Supreme Court. Unless other

jurisdictional responsibilities could be "traded" back to the Supreme Court, it

is likely that additional Provincial Court appointments would be needed.

In contrast to the superior court model, these approaches would have the

effect of shifting some cost from the federal to the provincial government.

More family cases in Provincial Court could create pressure for more

Provincial Court appointments. As well, the fact that provincially appointed

judges would be doing some of the same work as federally appointed judges

for less pay might eventually put upward pressure on Provincial Court

salaries. One of the challenges would be to negotiate a basis for funding this

model with the federal government.

There may be other responses to the resource implications of these proposals

and they would need detailed study by financial and policy experts. One

possibility that might be considered is the reallocation of some of the time of

the 14 provincially appointed Supreme Court Masters who already devote a

significant portion of their time to family matters. Insofar as the Supreme

Court would be relieved of some of its family work, it may be reasonable to

dedicate some of the time of the Masters to support of the Provincial Court.

jurisdiction model or a coordinated jurisdiction approach:

the family services recommended in chapters 3 and 4 of this report;

and

Masters could be allocated to support Provincial Court family cases.

Although there is a growing trend among lawyers to specialize in one or more

areas of law, our courts expect judges to be expert in all areas of the law.

Many judges never practised family law, but once appointed they are expected

to bring knowledge and sensitivity to family disputes.

Those who did practise in the field will be well versed in the law, but for

many families who end up in trial the truly wrenching issues are not legal at

all: there may be emotional trauma, psychological adjustment issues,

substance abuse problems or overwhelming financial stresses. These all fall

outside of the realm of traditional legal training.

In addition to proposing a system that manages more of these problems before

they get to the courtroom, we say that because family law is so different, the

role of the judge must be different, and the qualities judges hearing family law

cases need are also different. The role requires a special interest in families

Further, ongoing training should be available to family court judges in areas

such as family dynamics, child development, gender bias, substance abuse,

sexual abuse, family violence and the psychological effects of separation, as

well as information about community social services and about Aboriginal

and ethno-cultural communities.

lawyers and mediators need to understand how to assess the patterns and

severity of abusive behaviour and the psychological and physical

consequences for the family members over time.

As family law changes, the skills required of the judge change. The increasing

use of judicial case conferences and settlement conferences in family cases

means that judges must be skilled facilitators as well as decision makers, and

our proposed changes take this even further. The qualities of an active

the Globe and Mail, Aug. 14, 2002, article by Kirk Makin

manager are critical to the changes we propose to the family court hearing

model in chapter 5.2 of this report.

It will also be important for judges hearing family cases to be trained to meet

the particular challenges posed by increasing numbers of unrepresented

litigants in what are often emotionally-charged situations. Judges in these

cases need to be particularly skilled and knowledgeable if proceedings are to

be run efficiently and are to instil confidence in the litigants. They need to be

able to make decisions quickly and communicate them clearly, so that the

parties understand what has happened and feel a sense of finality.

It is generally agreed that specialist judges are a key element in a family

court’s success. They bring substantive and procedural expertise, more

efficient and predictable hearings, and enhanced sensitivity to the social and

emotional issues involved. Dedicated specialist judges are also needed to

provide continuity and leadership to a court that is moving forward and

providing judicial services in new ways.

On the other hand, some BC judges express concern about the possibility that

specialization will lead to isolation and burnout. Some would strongly resist

doing family work full-time for the long-term.

One school of thought supports judicial specialization but for a limited term:

"…many judges will need a change of pace and it is beneficial to bring the

Others feel that family law is sufficiently unique, and the advantages of

specialization so important, that judges should be appointed permanently to

family court. They also emphasize the critical role that judicial leadership

plays in creating a family-oriented court culture and argue that long-term

specialization best serves this end.

There is no doubt that many BC judges and lawyers have the legal skills,

personal aptitude and willingness it takes to be a specialist family law judge.

On balance, we are convinced that the advantages of specialization outweigh

the risks. We believe that it would be relatively easy, over time, to create a

bench of permanent specialized judges, and this should be the goal.

Still, we recognize that today’s judges, who did not accept appointments with

the expectation or intention of full-time family work, may not find a

permanent appointment to a specialized bench acceptable. Judges who do not

want to sit on a specialized bench should not be asked to do so. Over time

however, new appointments should be made to a permanent, specialized

family bench within a specialized court.

We note that in spite of the fact that approximately one third of the work in

the Supreme Court involves family law, few family lawyers have been

appointed to the Supreme Court bench in the last decade. Family law expertise

can certainly be acquired on the bench, but it should also be a factor in

selecting lawyers for appointment.

family law expertise, whether that expertise is gained in practice or on

the bench.

special interest in, commitment to and aptitude and tolerance for family

law.

decision makers.

to show leadership in the transition to a cooperative culture in the

family courts.

receive ongoing training in family dynamics, child development, family

dysfunction, family violence and its impact on all family members,