Access to Family Justice

At some point in our high school civics class we learn that we live in a nomocracy, which is a fancy ten-cent word meaning a society governed by the rule of law. Living in a society governed by the rule of law means a whole lot more than that we have police who arrest shoplifters and drunk drivers. It means, among other things, that we are governed by laws that are written, published and understandable, and apply to everyone equally. It means that we have ready access to a justice system which resolves legal disputes — whether between corporations, between an individual and the state, or between two people leaving a family relationship — quickly, efficiently, affordably and fairly. Unfortunately, in many parts of Canada, these aspects of "living in a society governed by the rule of law" are more of an ideal than a reality.

This section talks about some common barriers people experience accessing family justice in British Columbia, a few of the ways that government, the courts, the law society, and lawyers have responded to the problem, and some ideas about other steps that might make family justice more accessible.

Barriers to justice

Most people who have a family law problem have never had any contact with the court system before. For those who are new to the system, court can be extremely intimidating. Of course, considering that it's a scary place and the stakes in family law disputes are so high, you're probably best off hiring a lawyer. Unfortunately, lawyers' fees are often out of reach, even for middle-income Canadians. Even though you might be prepared to pay for a good chunk of a lawyer's time, family law disputes that have to go to trial are rarely resolved in less than two years, and that's two years' worth of lawyer's fees to pay for. You might apply to the Legal Services Society to see if you qualify for legal aid. You probably won't qualify, unless your annual income is below the poverty line and your legal problem is one of the problems they will help with. Even then, you won't get a lawyer to help you with all of your case, just some of it and just for a limited amount of time.

Let's say you decide to represent yourself. (That's not an unusual decision. The rates of people without lawyers are as high as 80% in some courts.) Now you have to learn about the law and the court processes you'll be dealing with. The laws of Canada are published in print and online, and you can find them through the website of the Queen's Printer in British Columbia or from the Department of Justice Canada, or, even better, through the awesome website provided by the Canadian Legal Information Institute. So far so good.

Except that the laws are complicated. They're not written for the average person, they're written by lawyers for lawyers, and that's just one of the two problems you're going to run into. But you're a capable person, you've got this. No problem. Let's say you've got a question about spousal support and how you calculate the part that's taxable or tax-deductible. Well, that's in section 56.1 of the federal Income Tax Act. Here's the subsection you need to read:

(2) For the purposes of section 56, this section and subsection 118(5), the amount determined by the formula

A – B

where

A

is the total of all amounts each of which is an amount (other than an amount that is otherwise a support amount) that became payable by a person in a taxation year, under an order of a competent tribunal or under a written agreement, in respect of an expense (other than an expenditure in respect of a self-contained domestic establishment in which the person resides or an expenditure for the acquisition of tangible property, or for civil law corporeal property, that is not an expenditure on account of a medical or education expense or in respect of the acquisition, improvement or maintenance of a self-contained domestic establishment in which the taxpayer described in paragraph (a) or (b) resides) incurred in the year or the preceding taxation year for the maintenance of a taxpayer, children in the taxpayer’s custody or both the taxpayer and those children, if the taxpayer is

(a) the person’s spouse or common-law partner or former spouse or common-law partner, or

(b) where the amount became payable under an order made by a competent tribunal in accordance with the laws of a province, an individual who is the parent of a child of whom the person is a legal parent,

and

B

is the amount, if any, by which

(a) the total of all amounts each of which is an amount included in the total determined for A in respect of the acquisition or improvement of a self-contained domestic establishment in which the taxpayer resides, including any payment of principal or interest in respect of a loan made or indebtedness incurred to finance, in any manner whatever, such acquisition or improvement

exceeds

(b) the total of all amounts each of which is an amount equal to 1/5 of the original principal amount of a loan or indebtedness described in paragraph (a),

is, where the order or written agreement, as the case may be, provides that this subsection and subsection 60.1(2) shall apply to any amount paid or payable thereunder, deemed to be an amount payable to and receivable by the taxpayer as an allowance on a periodic basis, and the taxpayer is deemed to have discretion as to the use of that amount.

If you understood all of that, you're a rock star, because:

1. the Income Tax Act doesn't talk about "spousal support," the term used in the Divorce Act and the Family Law Act, it talks about maintenance and support amount;
2. you had to also read section 56 as well as section 56.1 to learn about non-employment sources of income that are to be included in a taxpayer's income;
3. you had to guess that "self-contained domestic establishment” probably means house or apartment (I guess);
4. you had to find a case or a textbook explaining what “tangible property,” “civil law corporeal property” and “custody” mean, because none of these terms are defined by the Income Tax Act; and,
5. you had to find the definition of “medical expense” in section 118.2(2), the definition of “common-law partner” in section 248(1) and the definition of “child” in section 252(1).

I'm impressed. (I'm also impressed that more people don't go to jail after filing their income taxes each year.) So far so good. Now let's use an easier example. You need to change that spousal support order. So you look at the part of the Family Law Act on changing spousal support orders, section 167. The Family Law Act, like most provincial laws, is fairly easy to understand, especially compared to federal laws. Here are the subsections you need to know:

(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.

Much more plain-spoken, right? And there's been a change in circumstances since the last order, which is what section 167(2)(a) requires. But did you know that there is a whole collection of case law — judge-made law — that defines "change" as a material change, and creates a legal test that has to be applied to determine what sort of change is a "material change" and which is not?

No, you probably didn't. And that's because nowhere in the Family Law Act — or in the Divorce Act, the Child Support Guidelines or the Income Tax Act — does the legislation say that there is this huge body of unorganized case law that you may need to read in order to understand the plain meaning of the legislation. That would've been good to know, don't you think? (There are also cases that talk about when new evidence is of a "substantial nature" rather than of a lesser degree of importance, and cases that talk about the degree of "lack of financial disclosure" that must be proven before the court will consider changing an order for spousal support.)

But it doesn't stop there, because now you need to make sure that you're going to the right court and you're asking for an order under the right legislation. In British Columbia, there are two trial courts, but one court can only deal with some problems under one law, while the other court can deal with all problems under both laws, including the things the first court can deal with!

There are big differences in those courts, however. The first court, the Provincial Court, has relatively easy-to-understand rules that can be printed into a nice but thick brochure, doesn't charge any filing fees, and has forms that are easy to fill out. But if you're married and want to get divorced, or you have a problem about dividing property, you can't go to that court. The second court, the Supreme Court, has rules that are the size of the Kelowna phone book, charges hefty filing fees for almost every step of the process, and has forms that are much more complicated. Even if the price of the Provincial Court suits your budget, you may have no choice but to go to the Supreme Court.

Just to give you a flavour of the Supreme Court's rules, here are just the first seven subrules of Rule 10-6, the basic rule about making interim applications:

(1) In this rule:

"application respondent" means a person who files an application response under subrule (8);

"business day" means a day on which the court registries are open for business.

(2) A party wishing to apply under this rule must file

(a) a notice of application, and

(b) subject to Rule 15-2.1, the original of every affidavit, and of every other document, that

(i) is to be referred to by the applicant at the hearing, and

(ii) has not already been filed in the family law case.

(3) A notice of application must be in Form F31 and must

(a) set out the orders sought or attach a draft of the order sought,

(b) briefly summarize the factual basis for the application,

(c) set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the orders sought should be granted,

(d) list the affidavits and other documents on which the applicant intends to rely at the hearing of the application,

(e) set out the applicant's estimate of the time the application will take for hearing,

(f) subject to subrules (4) and (5), set out the date and time of the hearing of the application,

(g) set out the place for the hearing of the application in accordance with Rule 10-2, and

(h) provide the data collection information required in the appendix to the form, and the notice of application, other than any draft order attached to it under paragraph (a), must not exceed 10 pages in length.

(4) Subject to subrule (5), the hearing of an application must be set for 9:45 a.m. on a date on which the court hears applications or at such other time or date as has been fixed by the court or a registrar.

(5) If the applicant's estimate referred to in subrule (3) (e) is more than 2 hours, the date and time of hearing must be fixed by a registrar.

(6) The applicant must serve the following, in accordance with subrule (7), on each of the parties and on every other person, other than a person named as a party, who may be affected by the orders sought:

(a) a copy of the filed notice of application;

(b) a copy of the filed version of each of the affidavits and documents, referred to in the notice of application under subrule (3) (d), that has not already been served on that person;

(c) in addition to the documents referred to in paragraphs (a) and (b), if the application is brought under Rule 11-3, any notice that the applicant is required to give under Rule 11-3 (9);

(d) in addition to the documents referred to in paragraphs (a) to (c), if the application is in relation to an agreement filed in, or to start, a family law case, a copy of the filed agreement;

(e) in addition to the documents referred to in paragraphs (a) to (d), if the application is in relation to a determination of a parenting coordinator filed under Rule 2-1.1 (1),

(i) a copy of the filed determination, and

(ii) if the parenting coordinator was engaged under an agreement filed under Rule 2-1 (2), a copy of the filed agreement;

(f) in addition to the documents referred to in paragraphs (a), (b) and (d), if the application is in relation to an arbitration award filed in, or to start, a family law case, a copy of the filed arbitration award.

(7) The documents referred to in subrule (6) of this rule must be served as follows:

(a) subject to paragraphs (b) and (c) of this subrule, the documents must be served at least 8 business days before the date set for the hearing of the application;

(b) in the case of an application under Rule 11-3, the documents must be served at least 12 business days before the date set for the hearing of the application;

(c) in the case of an application to change, suspend or terminate a final order or to set aside or replace the whole or any part of an agreement filed under Rule 2-1 (2),

(i) the documents must be served by personal service in accordance with Rule 6-3 (2), and

(ii) service under subparagraph (i) of this paragraph must occur at least 21 business days before the date set for the hearing of the application;

(d) in the case of an application to change or set aside a determination of a parenting coordinator filed under Rule 2-1.1 (1) or to change, suspend or terminate an arbitration award filed under Rule 2-1.2 (1), the documents must be served by personal service in accordance with Rule 6-3 (2) and paragraph (a) of this subrule.

There are 13 more subrules that you need to read to understand Rule 10-6, in addition to the seven I've reproduced above, not to mention:

1. Rule 10-1, which tells you about the handful of choices you have when deciding which procedure to use to bring your application;
2. Rule 10-2, which says where your application should be heard;
3. Rule 10-3, which describes the general rules for applications;
4. Rule 10-4, which talks about the form and content of affidavits;
5. Rule 10-5, which says how applications are brought;
6. Rule 10-9, which says what to do if your application is urgent;
7. the eight or so other rules referred to in Rule 10-6; and,
8. a handful of other rules, like the rule defining terms used in the rules and the Judicial Case Conference rule, that may need to be read to understand and correctly apply Rule 10-6.

I'll stop here. And I haven't even talked about the difficulties involved in the Divorce Act and the Family Law Act, which cover some of the same subjects, but not all, and apply to some of the same people, but not all. Read the chapter The Legislation on Family Law if you want to figure that one out.

The point is that there are a lot of barriers to accessing justice in British Columbia — and everywhere else in Canada, really — which include the complexity of the governing legislation and the common law, the complexity of the rules of court, the difficulty of navigating the incompletely-overlapping jurisdiction of the two trial courts and the two primary laws that deal with family law problems, the inordinate delays getting trial dates that plague both trial courts, and, of course, the high price of lawyers' fees.

If we do live in a society governed by the rule of law, and I believe we do, it seems somehow unfair that justice should be reserved to those with the ability to pay for it ... and the luxury of the time to wait for it.

An impressive pile of reports...

Beginning in the 1960s and early 70s, lawyers and judges began to be concerned about the justice system, partly because litigation associated with the civil rights struggle revealed gross inequalities in people's ability to access justice because of their income, their sexual orientation, their gender, their religious inclinations, their ethnicity and the colour of their skin. People protested, wrote lots of important papers about access to justice, and lobbied government for change. As impotent as protests and lobbying seem today, things did in fact change.

First, we saw the creation of provincial courts throughout the west. (The Provincial Court of British Columbia was founded in 1969.) Second, law schools across Canada began to develop student legal advice programs, through which law students provide legal services for free while learning more about the law and their future careers, including the Law Students' Legal Advice Program at the University of British Columbia. We also saw human and civil rights legislation being introduced across Canada, including the Canadian Bill of Rights in 1960, the British Columbia Human Rights Code in 1973, and the Canadian Human Rights Act in 1977.

These were all important steps, but none of them was the silver bullet that solved the access to justice problem, and the problem continued. And got worse. In hindsight, it seems as if every 15 to 20 years after that point, concern about access to justice would build and build and then crest with a flurry of academic reports, government commissions and law society task forces. A few initiatives would be launched, some with lasting effect, like Canada's pro bono legal advice programs, and concern would again subside.

The most recent flurry happened in 2013. In that year, we had four very important national reports on the problems affecting Canadians' ability to access justice, and it seemed as though a moment of significant change was at hand. These papers are all very good and are all worth reading:

1. Professor Julie Macfarlane's landmark study on the experiences of litigants without lawyers, "The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants;"
2. the report of the Canadian Bar Association's Access to Justice Committee, "Equal Justice: Balancing the Scales;"
3. the final report of the Family Justice Working Group of the National Action Committee on Access to Justice, "Meaningful Change for Family Justice: Beyond Wise Words," which provided a particularly powerful call to action, and is really worthwhile reading; and,
4. the final summary report of the National Action Committee on Access to Justice, "Access to Civil and Family Justice: A Roadmap for Change."

The report of the National Action Committee's Family Justice Working Group was especially important. The authors observed that:

"Canadians do not have adequate access to family justice. For many years now reports have been telling us that cost, delay, complexity and other barriers are making it impossible for many Canadians to exercise their legal rights. More recently, a growing body of research has begun to quantify the extent of unmet legal need in our communities and to describe the disquieting individual and social consequences of failing to respond adequately to family legal problems."

But, commenting on that "growing body of research," they further observed that the reports which had already been generated on the access to justice problem were remarkably consistent in both their diagnosis of the problem and their recommendations for its cure:

"The [working group] is very mindful of the many family justice reform reports that precede this one. These reports are remarkably consistent in their diagnosis of the problems and their prescriptions for change. A key theme of all reports is the place of adversarial (rights-based) and non-adversarial (interest-based) dispute resolution processes in the family justice system and the still untapped potential for non-adversarial values and consensual dispute resolution processes to enhance access to the family justice system.

"Steps have been taken to respond to these reports across Canada and the Commonwealth and, in many respects, the practice of family law looks very different today than it did 25 years ago. Changes to court rules and forms have made courts more accessible and judges have become increasingly involved in case management and settlement facilitation. Legal information programs, subsidized mediation and post-separation parenting programs are widespread. The legal profession has adopted non-adversarial approaches to family law disputes and processes like mediation and collaborative law are now widely used across Canada.

"Despite these changes, reports and inquiries continue to call for further reform, saying that the changes to date, while welcome, are simply not enough. The reports continue to advocate for a more dramatic shift to non-adversarial approaches, calling for 'drastic change', a 'fundamental overhaul' and a 'paradigm shift'."

And here we are in 2020, sixty years after the access to justice revolution first began, and the problem continues and persists. In fact, it is arguably worsening. The number of people without lawyers continues to climb in all areas of the court system, but especially in our provincial courts, and these folks' lack of familiarity with the rules of court, the rules of evidence, the governing legislation and the common law result in delays and adjournments that suck up judicial resources and make the delays facing our system even worse than they otherwise would be. (It's entirely understandable that litigants without lawyers would not fully understand the rules and the law. The delays they cause by their general lack of knowledge are a matter of fact — there's research on this too — not a question of fault. I get it. The people who can't afford to hire lawyers aren't to blame for this.) These delays are only aggravated when one financial crisis after another lead governments to not appoint replacements when judges retire or pass away, nor keep the total number of judges on par with growth in the provincial population.

...and some partial progress

This is not, of course, to say that nothing is being done. After that flurry of reports in 2013, groups were established in many provinces to pursue the access to justice problem and potential solutions. Some of these efforts have floundered, while others have produced notable successes. We are lucky to live in British Columbia, which seems to be leading the country in experimenting with new programs and different initiatives. The changes that have been made in just the last ten years in British Columbia are really impressive. Here are a few of the steps the court has taken:

• Starting in 2010, the Supreme Court developed rules of court just for family law disputes, and created special forms just for family law disputes that, while complicated, are designed to reduce conflict by taking a fill-in-the-blanks approach.
• The Supreme Court also expanded the Judicial Case Conference program, so that anyone can schedule a JCC at any time, giving everyone access to a judge who can deal with problems using an approach similar to mediation.
• The Provincial Court has established a new pilot project in the Victoria courthouse that is seeing how a less adversarial approach to trials works.
• The Provincial Court also

the Parenting After Separation program, a program designed to help separated parents better communicate with each other and lower the level of conflict to which the children are exposed.

Here are some of the steps government has taken:

In ordinary civil matters, the province has also created the Civil Resolution Tribunal that resolves...

• Two new organizations, created by lawyers and mental health professionals...

Most importantly, we have also seen family law lawyers take on the access to justice issue by offering a range of different ways to resolve family law disputes outside of court, with less anger, less cost and more speed than is usually associated with litigation. More lawyers are now willing to try to resolve cases using mediation, collaborative negotiation and arbitration than ever before.

court initiatives lawyers' initiatives government initiatives (FLA, DA) social service orgs dealing with law

Limited scope legal services

As well, more and more lawyers are willing to work on an unbundled or limited scope basis. This means that, instead of the usual sort of retainer where a lawyer expects to handle all aspects of a file from start to finish, the lawyer will work with their client to identify the specific service they will offer while the client does the rest. The sort of legal services that are best suited to a limited scope approach include:

1. drafting affidavits and applications;
2. preparing legal opinions;
3. completing court forms, including financial statements;
4. evaluating or drafting settlement proposals; and,
5. coaching the client through the litigation process.

This resource — which is funded by Courthouse Libraries BC and the Law Foundation of BC — is one example of those changes.

Pro bono services

access pro bono law students' progs PBSC The Law Centre at the University of Victoria

Other sources of legal information and assistance

legal aid fam fam website BWSS, WAVA, etc SUCCESS Settlement services tri-cities family group LGBTQ groups

What else needs to be done?

The practise of family law in British Columbia, from a lawyer's point of view, is very different today than it was just twenty years ago. As a young lawyer just starting out, I remember treating every new case that came in the door as if it was going to be resolved at trial. That was just the assumption we made. We didn't think about mediation, arbitration was completely off people's radar, and collaborative negotiation had yet to be introduced in the province.

Very few lawyers make the same assumption today. Most of us assess new cases for certain factors that might make litigation inevitable — including the presence of family violence, the need for orders protecting people or orders protecting property, and threats to move away with children — and our inclination is often to pick up the phone and call the lawyer on the other side to talk about what's going on between our clients. We have more tools to settle cases these days than ever before, and the fact that less than 5% of family law court cases are resolved by trial seems to reflect these options.

This is great. So are the changes being made by the courts, the programs being introduced by government and the Law Society's continuing efforts to improve access to justice for British Columbians.

And yet it's not enough.

In my view — and this is me speaking only on behalf of myself, not on behalf of the contributors to this resource, Clicklaw Wikibooks, or Courthouse Libraries BC — all of the changes we've talked about in this section are tinkering around the edges. The bigger problems, namely the cost of legal services, the complexity of the legislation, the complexity and adversarial nature of court processes, the complexity of the case law, the chronic delays affecting the court system, and our failure to properly fund alternatives to court, haven't been touched, and I'm not sure that any government is really prepared to tackle these problems head-on. It will cause too much controversy and cost too much money.

I don't know that these problems, some of which stem from the fundamental characteristics of the justice system itself, are ever going to be addressed. I have some ideas about what could help, but all of my ideas are highly contentious and many amount to ripping the system down to its foundations and starting over, with different principles, different presumptions and different values. I want to see a system that is focused on the short- and long-term wellbeing of children, that is built to minimize the impact of parental conflict on children, that provides the social and economic supports families in crisis need, that includes psychological as well as legal services, and that is fundamentally designed to support the future functioning of families living apart. I want a system in which court is the last resort and collaborative negotiation is the first. I want people to be able to solve their own problems without having to hire a lawyer if they don't want to hire a lawyer.

However, what I do know about change is that it is inevitable when it is supported by enough people. Think about cigarettes. Not all that long ago, it was acceptable to smoke in a bus shelter, at a movie theatre, or with your kids in the car and the windows rolled up. Yes, government regulations helped get the ball rolling, but what was really important was the change in social values. Nowadays, we wouldn't even think about smoking on an airplane. What was one completely acceptable and commonplace has now become taboo. (Other examples of massive social change include our attitudes toward divorce, women in the workplace, and same-sex marriage.) If the justice system is going to change, it is going to change because enough people realize that business-as-usual hasn't worked for the last sixty years and that the status quo is not only unacceptable, it's harmful.

Write to your MLA and your MP; write to the federal Department of Justice and the provincial Ministry of Justice. Write letters to your local media; press for continuing coverage of justice system issues rather than the usual one-and-done article when something scandalous happens. Get on your local provincial court's family law committee. Run for election. Become a lawyer, a paralegal or a mediator. Start community groups and Facebook groups. Volunteer with local advocacy centres, and if there isn't one, create one. Start newsletters, listservs and email lists.

We've got to do something. We can't wait much longer.

Resources and links

Links

• Law Society of British Columbia
• Canadian Bar Association
• Vancouver Bar Association
• Victoria Bar Association
• Trial Lawyers Association of British Columbia
• CBABC Lawyer Referral Service
• Legal Services Society's Legal Aid Intake Services
• Legal Services Society's website on how to apply for legal aid
• BC Parenting Coordinators Roster Society
• Mediate BC's website for Family Mediation Services
• BC Family Unbundling Roster

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 23 February 2020.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.