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Three new QB written desk application processes! And they're fairly helpful!

Ken Proudman - view Arbitration availability
Barr Picard Law (Alberta. Joined 2017)

Three new Court of Queen's Bench written desk application procedures to respond to the pandemic were announced today, in three separate announcements. Here's my preliminary summary and observations:

1. Applications to obtain basic financial documentation. If your Disclosure Statement isn't filed and served within a month, you'll need to fill out the new Response to Request for Disclosure form. Unless each side agrees to an extension or consent order, the applicant will then need to provide a proposed disclosure order. So any cost savings from not having to sit in court will just go into drafting responses and forms of order instead I guess. And it doesn't look like there's a way for the applicant to argue against the respondent's response, so explain why what was provided was inadequate (although the next procedure might address that). The announcement can be viewed at: https://albertacourts.ca/qb/resources/announcements/npp-desk-applications-for-notices-to-disclose/

2. Applications for very simple issues. There’s a list of 17 issues which they consider simple. For example, parenting time during holidays, summers, or special occasions, location and time of exchanges of children, simple child support applications, varying or suspending support, exclusive possession, etc… Some of these are issues that were very inefficient to have to spend a morning sitting in court to address, so a written application process might be a better process for some of these minor issues. The announcement can be viewed at: https://albertacourts.ca/qb/resources/announcements/npp-family-law-simple-desk-application-process/

3. Applications with written arguments, which aren’t limited to simple issues. If each side agrees to the process or you’re otherwise somehow able to get the court’s permission, and each side is represented by a lawyer, these can be done in writing too. Each side will have to submit briefs setting out their arguments and the law. There isn’t a list of what can be decided through this mechanism, I suspect that anything that would ordinarily go to a trial/hearing with live witnesses probably won’t be eligible, such as significant changes in parenting time and property division. See the full announcement here: https://albertacourts.ca/qb/resources/announcements/npp-family-applications-with-written-argument

What isn't being heard? Unless each side agrees and each side is represented by a lawyer, or you're somehow able to get special permission, I don't see a way to obtain spousal support, significant changes in parenting time that don’t have enough urgency to be decided through the emergency hearing process, or property division. Most disputes involving property division that can’t be resolved through negotiation are better resolved through family law arbitration. In the simple application procedure, there are a lot of other applications that aren’t listed as well, such as many procedural applications, applications to sell property where a sale hasn’t already been ordered, more complicated applications for child support such as where one of the parents is self-employed or you're imputing income, orders to appoint a psychologist or other expert, applications for advance costs or interim property distribution, and more.

What's concerning? Because these are written application, it doesn’t look like there’s a way to answer the judge’s questions. For the simple process without written arguments, it doesn’t even look like there’s a way to explain why you’re asking for something from the judge or explain the law to them either, because they're based entirely on affidavits, applications, and proposed forms of order. That means that there’s some risk and there might be some unfairness, especially if the application is heard by a newer judge without experience in family law, or if the respondent didn’t agree to a process where they couldn’t explain their position or the law. Some of these issues are so simple that I doubt they'd be appealed, but for some of the more significant applications, such as changing a child's name, this definitely adds a ground of appeal. The applicant can probably try to fit some arguments and cases to be relied upon in their notice of application, and hope those portions actually get read, but otherwise I suspect many people will try to sneak these into the affidavits.

These processes are in addition to the earlier procedures for emergency and urgent hearings, and the desk applications to convert arbitration awards into court orders.


0 3 months ago

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