Unified family court proposed for Alberta.
Access to justice has long been a concern to the public, particularly in family law disputes, where parties lack the deep pockets to provide funds to sustain the type of prolonged and costly litigation that is common in corporate and commercial law contexts. Leaving aside for the moment considerations of whether it is in fact even appropriate to litigate family law matters, in Alberta at least; it has been argued that family law litigants are at a distinct disadvantage in trying to proceed without legal counsel, because the jurisdiction for family law problems is not limited to one level of court, or in Calgary, even to one court building! The public has long complained, and with good reason, that it is difficult to know whether their matters will be heard in Provincial Court of in the Court of Queen's Bench. The public also has trouble finding the right courthouse, although that situation will eventually be remedied in Calgary with the construction of a new single courthouse.
Why does it matter which court, of which courthouse? Regardless of the logistical difficulties posed by having different matters heard in different courthouses, parties can be disadvantaged by delays and costs incurred if they try to proceed in the wrong forum. In addition, there are complaints that lawyers who engage in "sharp practice" have been known to conduct files by "forum shopping"--that is, where there is some overlap in jurisdiction between the two levels of court, commencing an action in one court, and then, if matters don't proceed according to plan in one court, bringing the same application in another, (usually higher level) court. Lawyers can't take all the blame, however, as at other times, it is the client who instructs the "duplicate" proceeding in Queen's Bench when they don't like the Provincial Court order or result. Regrettably, this tactic is more common than the public would expect. In an effort to provide better service to the public and to clamp down on such abuses, Queen's Bench Justices (in Calgary, anyway) have stated that they will not tolerate forum shopping and the Chief Queen's Bench Justice has directed his judges not to lightly overturn or interfere with family law decisions from the lower level courts. In practice, this means for example, that custody and access orders (pre-divorce) from Provincial Court will not be overturned simply because there is a new action (for divorce) commenced in Queen's Bench later.
The public is not expected to be entirely conversant with issues of legislative jurisdiction, which require federal matters such as divorce to be heard in the first instance in the Court of Queen's Bench. The Provincial Court of Alberta has jurisdiction to hear all matters of "purely local and provincial concern", including child welfare and domestic relations (non-divorce, guardianship, custody and access) matters relating to the children of unmarried or never-married parents, or separated parents who are not yet divorcing, except if the proceedings are to establish paternity, in which case the Court of Queen's Bench has jurisdiction. If you are a grandparent seeking access to your grandchild, your matter will be heard in Provincial Court. In the case of child support, matters are also heard in the Court of Queen's Bench, unless you are bringing an application for the reciprocal enforcement of a child support order from another province, in a which case you will be heard in Provincial Court, and so on. You get the picture. Except that it's totally confusing to members of the public, and does affect access to justice.
Calgary-Lougheed MLA Marlene Graham QC. who is also the chair of the Unified Family Task Force, has identified significant concern from members of the public who have clearly said that the status quo is no longer acceptable. "The time has come for a unified family court in Alberta", and it is anticipated that Graham will chair the implementation committee which is mandated to develop the plan to create the new unified family court. The committee, composed of members of the judiciary, the legal community, the Unified Family Task Force, Legal Aid and government representatives, will address time lines for implementation of the new court as well as the range of services to be offered, including mediation, court services, parenting courses, and assistance for unrepresented litigants.
While the provincial and federal bar associations are not entirely in favor of the proposals for the new court, and there are residual issues related to funding and staffing, particularly at the judicial level, the provincial government is determined to proceed and anticipates that the new court could be operating as soon as 2005-2006. Harmonization of Alberta's laws with federal legislation will undoubtedly change the landscape of family law in the province. Based on the success of other provincial unified court models, we can look forward to greater consistency in provincial and federal legislation regarding parenting arrangements as well as greater access to a full range of court and court-annexed services in the family law arena.
Michelle Christopher is a lawyer with the Youth Criminal Defence Office in Calgary, Alberta.
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|Title Annotation:||Family law|
|Date:||Jun 1, 2004|
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