Access to Family Justice

At some point in our high school civics class we learn that we live in a nomocracy, which means 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:

• common barriers people face when accessing family justice in British Columbia,
• a short history of the access to family justice crisis in Canada, and how it has continued to worsen even as influential voices in the justice sector have called for more solutions,
• ways that government, non-profit organizations, the courts, the Law Society, lawyers, mediators, paralegals, and other legal advocates have responded to the problem, and
• future developments and ideas about other steps that might make family justice more accessible.

Barriers to justice

Is access to family justice just about access to lawyers and courts? No. Many families don’t need the courts to resolve their separation. Popular media would have us believe that lawyers arguing before a judge is somehow the proper way to settle relationship breakdowns. The truth is that many options outside of court exist, and court is generally only used for highly contentious issues.

For those who do end up in court however, the process can feel intimidating. Given that the stakes in family law disputes are high, you would be best off with a lawyer by your side but that's not always possible due to the cost. You might apply to Legal Aid BC 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. But there are other legal information, coaching and mediating professionals that can help along the way.

If you do have to go to court, it's not unusual to have to represent yourself. The rates of people without lawyers are as high as 80% in some courts. If you're in that position you will have to learn about the law and court processes. The laws of Canada are published in print and online, and you can find them through the provincial government's BC Laws website or from the Canadian Department of Justice, 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. But you're a capable person, you've got this! First, know that there is public legal information out there. The Clicklaw website is a good first start. There's also:

• Legal Aid BC's Family Law website
• Justice Education Society's Online Help Guide for Supreme Court family law matters
• People's Law School's Dial-A-Law website for families and children
• BC Ministry of Attorney General's Family Justice website

IF you do have to go to court, you'll want to learn about the two courts that deal with family law matters in BC: the BC Supreme Court, and the BC Provincial Court.

The Provincial Court, has relatively easy-to-understand rules that can be printed into a 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 have to go to the BC Supreme Court, which has rules that are the size of the Kelowna phone book, charges fees for almost every step of the process, and has more complicated forms.

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, barriers to accessing out-of-court-options, the complexity of the rules of court, the difficulty of navigating the two trial courts, the delays getting trial dates, and, of course, the cost of accessing needed professionals, including lawyers, mediators, parenting coordinators, and collaborative family law practitioners.

If we do live in a society governed by the rule of law, and I believe we do, it seems important to advocate for better access to justice for everyone, including the children of divorce and separation.

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'."

Now more than sixty years after the access to justice revolution first began, 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. The availability of out-of-court options for resolving family matters has increased, which is a positive development for families. However, court processes continue to be affected by under-resourcing and delays, which increases stress on families.

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 or so years in British Columbia are impressive and inspiring. Here are a few of the steps the courts have 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 simplify 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, and introduced a new Case Planning Conference option that gives parties greater access to a judge who can deal with problems earlier on in the litigation.
• The Provincial Court is continuously experimenting, and has been testing dramatically different early resolution processes in some courthouses, while revamping the rules used in family court, all intended to lessen the adversarial aspects of trials.

CLBC help here please!!! The resources and references among these headings above and below need review and shaping.

• Transform the Family Justice System (TFJS) Collaborative, a multi-sectoral initiative, led by Access to Justice BC https://transformfamilyjusticebc.ca/about/
• 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.

A directory of lawyers offering unbundled legal services is available online at https://www.unbundlinglaw.ca.

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 once 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.