The Provincial Court and the Ministry of the Attorney General are collaborating on an initiative to change the rules of procedure for family matters in Provincial Court. As part of that process they are launching a program in Victoria on May 13, 2019 to try out key aspects of a new approach, evaluate how they work, and apply the lessons learned before making permanent changes to the rules.
This new approach to family law disputes emphasizes the importance of needs assessment and consensual dispute resolution, not as an alternative process, but as a first step in the resolution of any family law dispute.
The model is designed to help families focus on earlier, more collaborative resolution. It builds on existing family justice services including assessment, mediation and parenting education, but people will be referred to those services earlier in the process. Even if this doesn’t fully resolve all issues, disputed issues can be narrowed so it’s easier for families to proceed in court if they have to. New, simpler forms have been developed. And instead of making their first appearance in a busy, adversarial courtroom, people will attend a family management conference as the first step in court proceedings.
Victoria has been chosen to test a prototype of this early resolution and case management model based on factors including the number of Family Law Act files there and the existence of a Justice Access Centre attached to the courthouse. The Victoria Early Resolution and Case Management Prototype (Prototype) has two main components:
1. Early Resolution: Assessment by a Family Justice Counsellor and mandatory mediation
The Prototype involves a “front-end process” designed to help families to resolve their issues early, before any court appearances. Except for urgent matters, parties (the people involved in a legal dispute) will have to meet with a Family Justice Counsellor as a first step. The Family Justice Counsellor will conduct an assessment and, unless there has been family violence, the parties must complete at least one mediation session before proceeding to court.
People will be able to get legal advice during this phase. The Family Justice Counsellor may also refer the parties to appropriate community resources. If their issues aren’t resolved, the parties may then file an application and proceed to court. At that point the Family Justice Counsellor will help the parties make sure they are ready for court (for example, check that they have completed and shared financial information). More Family Justice Counsellor have been hired and trained in Victoria as part of the early resolution process.
2. Case Management: Family Management Conferences replace First Appearances
It is hoped that the new front-end process will result in agreements for many families and reduce the number of cases going to court. This will allow the Court to schedule Family Management Conferences instead of the current, usually brief, First Appearances in a courtroom. A Judicial Case Manager will schedule these conferences, taking into consideration the availability of the parties and lawyers, if they have them.
Family Management Conferences will be on the record but may be held in a conference room. The judge conducting the conference will try to resolve the issues and may make interim(temporary) orders (or final orders by consent) as well as case management orders to ensure the matter is ready for trial if one is needed. If all issues aren’t resolved at a conference, the judge can refer the parties back to mediation, adjourn them to another conference, or have the matter set for a trial.
Collaborative, user-centred, experimental and informed by evidence
This project adopts many aspects of the new approach to justice system reform advocated by Access to Justice BC and others. Since September 2014, Provincial Court judges have been participating in a collaborative working group to revise the Family Law Act rules and develop new family court procedures. Other group members include representatives of government and its Court Services Branch, the Legal Services Society, family lawyers nominated by the Canadian Bar Association BC Branch, and Sources (a community agency providing information to self-represented litigants).
The Prototype model focuses on families’ needs to resolve disputes more quickly and on the benefits of consensual resolution for parents and children. Launching a prototype in Victoria allows assessment of the model’s effectiveness before it is implemented more broadly in other court locations with a high volume of FLA files.
Order in Council #137 adds a new Rule 5.01 and Appendices B and C to the Provincial Court (Family) Rules to govern the Early Resolution and Case Management Model. Rule 5.01 provides definitions and identifies the types of matters covered by the new model.
Appendix B contains the operative provisions:
Appendix C provides new forms to replace the current notice of motion process, including forms for case management orders, relocation and enforcement matters.
The new rules for Provincial Court family cases in Victoria also include changes to the rules on how protection orders and extraordinary parenting matters (time sensitive decisions for children) are addressed. The forms and process for consent orders are also changed.
However, many parts of the current rules are left untouched including trials, trial preparation conferences, case conferences, Hague applications, and Family Maintenance Enforcement matters. Any section of the Rules not in conflict with a provision of this model still applies.
When and where these new rules apply
Starting May 13, 2019, people who want to resolve family disputes - in particular, family law matters like child support, spousal support, parenting time, contact or guardianship - at the Provincial Court in Victoria (at the Victoria Law Courts, 850 Burdett Avenue) will use the Early Resolution and Case Management process. Those who have filed an application for an order or notice of motion before May 13, 2019 will continue under the previous process.
Early Resolution and Case Management is only for family matters under the Family Law Act in Provincial Court, and only available in Victoria at this point. It does not apply to divorce or other proceedings in the Supreme Court of BC.