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Alberta’s new family court rules aim to minimize the “toxicity of adversarial litigation” as families undergo proceedings such as divorce and division of property.Jeff McIntosh/The Canadian Press
A new system in Alberta designed to settle more family law disputes outside of court has led to access-to-justice issues, some lawyers in the province say.
At the start of the year, the Alberta Court of King’s Bench launched what it calls the Family Focused Protocol. The changes are in part inspired by successful reforms instituted several years ago in Manitoba, where the number of family law trials has been significantly reduced.
The Alberta court says the new rules aim to reduce the amount of time family law disputes spend in a courtroom to minimize the “toxicity of adversarial litigation” on families as they undergo proceedings related to divorce, division of property, and questions such as child and spousal support. One early requirement is an alternative dispute resolution process.
But lawyers who work on divorce cases in Alberta say the new system has been cumbersome and convoluted, with several months of paperwork and other prerequisites necessary before they can make an initial appearance in front of a judge on behalf of their clients.
Marc Massie, a partner at Vogel LLP in Calgary, said he has been in front of a judge about five times this year, as of October, less than a quarter of the number of appearances he would have made under the old system.
“When you can get in front of a judge, it was really helpful,” Mr. Massie said of the new system. “Getting in has been close to a nightmare. That’s the challenge.”
Canada’s justice system has struggled for years with delays, a problem that gets the most attention in the criminal courts. But the country’s civil courts – and family law cases in particular – are also plagued by delays, which have led chief justices across Canada to consider better ways to organize the system.
Alberta’s new Family Focused Protocol starts with requirements such as a course on parenting after separation and an alternative dispute resolution process. The eventual first step in front of a judge, after an array of forms are processed, is called the mandatory intake triage.
The new protocol also aims to assign a single judge to each family throughout their entire process. The Court of King’s Bench has about 30 judges spending a substantial portion of their time on family law.
But Mr. Massie and other lawyers say the early steps in the system have not yet worked well. The court issued a lengthy 89-page manual on the new protocol, and in some situations has rejected legal filings because an item wasn’t submitted in the exact specifications cited in the manual.
“There was a lot of hope,” said lawyer Sierra Yanush of Yanush + Abusow LLP in Calgary. “The idea had been to move through the system faster.”
Ms. Yanush said judges are trying to make the new system successful, but lawyers are finding it challenging and costly for clients. She estimated the work required to get to the first judicial appearance at the triage meeting would cost clients at least $5,000.
Other lawyers have expressed frustration on social media about the inability to get time in court to see a judge. “Access to justice is a real concern, especially in matters involving children,” Marcus Sixta, founder of Crossroads Law in Calgary, posted on LinkedIn in the spring.
In late October, the Alberta government moved to increase the number of available judges. The government does not have oversight of the court’s daily management, but on Oct. 27 tabled legislative amendments to the Court of King’s Bench Act to allow 10 applications judges to help “more effectively resolve issues” in familial disputes.
The Court of King’s Bench, meanwhile, is working with lawyers to better navigate the new system and on Nov. 9, published an updated guide that aims to reduce logistical problems. It is now 248 pages and is meant to be a detailed reference guide.
“Many early form rejections and related problems could have been avoided by following the instructions in the manual,” Darryl Ruether, the court’s executive legal counsel, said in an e-mailed response to questions.
Mr. Ruether noted that the new Alberta system is based in part on reforms the Manitoba courts put in place in 2019, where the goal was to reduce the number of cases that went to trial and instead settle disputes before that point.
“We are hopeful that the resolution-focused approach will pay off for Alberta families in time,” Mr. Ruether said.
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Justice Glenn Joyal of the Supreme Court of Canada cited the Manitoba reforms as part of his application to the country’s top court, to which he was named in June.
Justice Joyal had been chief justice of the Manitoba Court of King’s Bench from 2011 until this year. In his Supreme Court application, he said the family law changes in Manitoba revolved around reducing the “adversarial reality of needlessly protracted legal proceedings.”
He said that in Manitoba, 70 per cent of family cases are now resolved, either completely or substantially, at an initial triage meeting. Before the reforms, the Manitoba court previously scheduled 300 family trials each year, with about a third of those proceeding to the actual hearing. Now, only about 20 trials proceed each year.
“The financial and psychological savings to families of early and lasting judicially assisted resolution is obvious,” Justice Joyal stated in his application.
In Ontario, the province’s Court of Justice is also working on a five-year plan to overhaul family court. The court’s Chief Justice, Sharon Nicklas, in September said one part of the plan is to enact the principle of “one judge, one family,” the same as a goal of Alberta’s new system.
One factor across the country is the variable availability of what’s called unified family courts, said Hadley Friedland, a law professor at the University of Alberta. Some family law falls under provincial legislation and is handled at the provincial court level, whereas divorces are governed by federal legislation and dealt with at the superior court level, such as Alberta’s Court of King’s Bench. Unified family courts help streamline cases by handling all issues in one court rather than two. Manitoba uses the unified system, but Alberta does not.
Prof. Friedland said the reforms at the Alberta Court of King’s Bench are a step in the right direction, even as the changes have caused some problems this year. She said the goal of having more families reach a settlement before a trial makes sense.
“I’ve heard that it’s convoluted and difficult, but something needed to change,” said Prof. Friedland. “Because the family law system has not been working for families and children for a very long time.”
To Mr. Massie, the lawyer at Vogel in Calgary, the new system needs to strike a balance where families are able to access a judge when necessary. He said the push for alternative dispute resolution makes sense, but stressed that people still need answers from a judge on difficult questions that cases of divorce often involve.
“There are certain things,” said Mr. Massie, “that just can’t avoid a fight.”