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John-Paul Boyd

Alberta dropping plan for unified family court ‘doesn’t make a whole lot of sense’: lawyer

Thursday, February 27, 2020 @ 1:03 PM | By Ian Burns

Last Updated: Tuesday, March 03, 2020 @ 9:37 AM

Alberta’s plan to launch a unified family court (UFC), which would aim to make family law matters easier to navigate for both lawyer and layperson alike, has apparently been suspended by the provincial government, a decision being lamented by members of the family bar in the province.

The news was revealed at town halls held by the Court of Queen’s Bench Feb. 18, according to Wayne Barkauskas of Calgary’s Wise Scheible Barkauskas. Barkauskas, who was in attendance at one of the meetings, said he “wouldn’t be overstating things” by saying the audience appeared crushed at the news.

Wayne Barkauskas, Wise Scheible Barkauskas

“We were expecting them to release the model to the profession and start discussions on what was exactly going to be happening,” he said. “I think everyone in the room knew on hold meant it is probably dead again.”    

In Alberta, family matters are heard by both the provincial court and the Court of Queen’s Bench. A unified family court, on the other hand, consists of specialized judges who hear all family law matters, including divorce, division of property, child and spousal support, custody and access, adoption and child protection applications. In its 2018 budget, the Trudeau government announced it would create 17 new judicial positions to start a UFC in Alberta.

Carla Jones, communications adviser with the Ministry of Justice and Solicitor General, said the idea of the unified family court was to save taxpayer money and cut red tape, but it would have ended up costing Alberta taxpayers millions of dollars in capital charges and ongoing operating costs.

“The federal commitment was not a dollar figure but for the appointment of 17 federal justice positions, even though they currently have a backlog on the Alberta Court of Queen’s Bench and Alberta Court of Appeal,” she said. “They did not commit to funding support staff such as judicial assistants and court clerks.”

Meaghen McKenna of Justice Canada said the department was aware of Alberta’s decision not to proceed with its UFC at this time and looks forward to continued collaboration with the province. She added the amendment to the Judges Act authorizing the new UFC positions came into force on April 1, 2019, and federal officials have been working on an ongoing basis with provincial officials on implementation.

“UFCs provide an excellent example of how the federal, provincial and territorial governments have worked collaboratively in responding to the needs of Canadian children and their families,” she said. “The UFC model enables family members to resolve all outstanding legal issues in a single forum, before specialized judges and with access to a full range of professional and community support services. UFCs can speed up the resolution of family matters, reduce the potential for further conflict, increase the ability of family members to obtain the services they need and offer better long-term outcomes for children and their families.”

Family law arbitrator and mediator John-Paul Boyd, former executive director of the now-defunct Canadian Research Institute for Law and the Family, said the legislation to establish a UFC in the province had already been drafted and an accord had been reached with the federal government about cost sharing.

“We were ready to go, which is all the more reason this is disappointing because it comes across as a bit spiteful, as if they were saying this is something the previous provincial government [under NDP Premier Rachel Notley] had done so it must be bad,” he said. “Yes, this may have been a project that had its genesis under an NDP government, but it is a fact this idea has been discussed and mooted by previous governments, all of which were conservative. I cannot fathom why pulling the plug when everything in place was justified — it just doesn’t make a whole lot of sense.”

John-Paul Boyd, family law arbitrator and mediator

Boyd said the idea of the unified family court is to “blend the jurisdictional mishmash so parties have the benefit of one-stop shopping.”

“It also creates rules of court which are simplified and are tailored just for family law disputes,” he said. “And perhaps the most important benefit is that it departs from the idea of a generalist bench to create a cadre of judges who become experts in family law. I can count on one hand the number of family law lawyers who have been appointed to the Court of Queen’s Bench over the past five years.”

The lack of judges with a family law background often leads to issues often being “pushed down the road,” said Barkauskas.

“I understand where they are at, but that just adds more delay and more cost for people,” he said. “And on a family law matter we could be before any one of four different judges on the same matter, depending on what the issues are. That’s hard for a lawyer to navigate — can you imagine a self-rep?”

The overlapping jurisdictions of federal and provincial statutes in family matters has sowed confusion among the public, said Boyd.

“We have the provincial family court which is intended to be more accessible than the Court of Queen’s Bench, so it has simpler rules and forms, but can’t deal with any issues under the Divorce Act or Family Property Act,” he said. “To outsiders, family law seems to have a veneer of simplicity, but that is not the case when a person is dealing with complicated tax issues or division of closely held corporations.”

One of the arguments being made by the government is the move to a UFC was going to cost too much money, said Barkauskas. But he added that argument doesn’t make any sense as everything being done on the provincial side would be elevated to the federal level.

“This is going to cost the federal government a ton of money, but there is no question it is going to save the provincial government bagloads,” he said. “So that is the part I think people are frustrated with.”

Barkauskas said other parts of the country complain about delays in the court system “but Alberta is almost in a completely different universe.”

“Let’s say I had a file, and that trial was just of an average length — we are looking for five days or more,” he said. “If I’m ready for trial today, the next available court date is more than three years away. Other provinces complain they are waiting six or eight months, but Alberta is just a completely different animal.”

Neither the Alberta Court of Queen’s Bench nor the provincial Ministry of Justice replied to The Lawyer’s Daily’s requests for comment by press time.

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