Today the Honourable Madam Justice D.A. Yungwirth consulted the family law bar in Edmonton in relation to the proposed changes to Family Practice Note 2. Since most of the changes will apply throughout Alberta, but the consultation was only conducted in Edmonton, could you forward this with counsel practicing outside of Edmonton?
This article does not address each of the proposed changes to QB Family Practice Note 2. Our analysis can be found here. The draft PN 2 can be found here. Instead, this article summarizes my notes about potential further changes, some of the feedback that the Court has received, and their rationale behind some of the changes. Concerns expressed by the bar at the consultation were recorded for further consideration.
The Court intends that the new PN 2, as well as the new PN 10 (restricting access to court files), will be implemented around the end of September 2017. They plan to implement a "soft" launch, so that the changes will not be strictly enforced until around January 2018.
The Court will soon be releasing a form to be completed in order to request Special Chambers dates by email. They aim to provide a same-day response as to whether the matter has been booked. Booking by telephone will still be available for those without computers (ie self-represented litigants). Because in some circumstances PN 2 will not require consent, this form will ask whether the opposing party consents to the matter being set for Special Chambers. Where there is no consent, this form will likely require an explanation be set out.
Although there are exceptions where consent to set a date for Specials is not required, it will still be expected that in the vast majority of cases, consent will be obtained. If there's frequent mischief, we may revert back to consent always being required.
They may make a further change so as to require consent if booking a half- or full-day Special Chambers hearing, since those dates are in short supply.
They've received a lot of feedback about the three issue limit. It was emphasized that we can apply for leave in special circumstances. One lawyer in attendance recommended an earlier filing deadline for cross-applications, so that the number of issues is known well before the length of the Special Chambers is set, in order to minimize the potential to be bumped to a later date.
Given the sharp rise in the number of affidavits (especially if Update Statements become even more prevalent now that timelines have been addressed), it is expected that fiats to file additional affidavits will be much less likely.
The intention is that the same Affidavits will be used in both Regular and Special Chambers. Update Statements can be used to include evidence which arose in the subsequent months. However, two lawyers in attendance criticized this , because at the outset lawyers may not have a great grasp of the evidence, so it can be beneficial to be able to re-write an affidavit. Other lawyers expressed opposite concerns about new details being released after a Questioning has already occurred, or without sufficient time to conduct a Questioning.
Where an expert is appointed by Order, their report is still expected to be filed through an affidavit sworn by that expert, and that affidavit should not affect the limits. I suggested codifying an exception for experts not appointed by order, such as in the case of guideline income analyses and independent medical examinations.
The Court will look into whether there should be separate filing deadlines for third parties, such as independent counsel for children or MEP.
They're considering setting out rules restricting the length of Family Law Act Statements.
Where a Concise Letter requests that a copy of the Disclosure Statement be made available to the Justice, it's expected that the Clerk will provide the copy to the Justice, it's not a request that you be able to include your Disclosure Statement along with the Concise Letter. This should reduce our photocopying costs.
Although Exhibits can't contain narrative, it's still okay to include calculation tables and resumes. Diary entries and text messages are probably fine. The Court will be able to award costs where material isn't relevant, is extraneous, or further narrative is provided in Exhibits.
It's okay to use a separate page for your exhibit stamp, that won't count towards your 40 page limit.
They'll probably remove the requirement that 5 pages in a Concise Letter address the primary Application, and 3 pages address the Cross Application. Where there is a Cross Application, the limit will likely simply be 8 pages, and counsel can determine how to allocate their space.
The estimated time for argument should be included in the Concise Letter, not appended to. Paragraph 39(f) was an error that will be corrected.
They're requesting feedback about the affidavit filing deadlines. One lawyer had written in to suggest a two week gap after the first Affidavit is filed (ie that the Applicant's initial affidavit will be due on the 7th Friday before, rather than the 6th).
They're considering changing the 10 page limit to the Respondent's Affidavit (where there is a cross-application) to 8 pages instead of 10, so that it's less confusing.
They intend to state that this PN 2 will also apply to Case Management, unless the Case Management Justice has set out different deadlines. If your CMJ does modify the deadlines, the lawyers should let the relevant Coordinator know, so that the matter is not inadvertently struck.
There is a reference to the Supervising Justice in the provisions relating to obtaining leave. As many of us have not heard of this role, it was explained that a Supervising Justice is presently appointed every two weeks (at least in Edmonton). They aren't the same as a Case Management Justice, Duty Justice, or seized Justice.
The reason why Appendix C was deleted ("Leading Family Law Cases") was that they don't have the resources to keep this document updated. There was a concern that listing the cases could be misleading where the law has changed.
A couple of items beyond the topic of PN 2 were also addressed:
2018 Edmonton Special Chambers have now been determined, and should appear on the website within the next few days.
The Mandatory Early Intervention Case Conference Pilot Project is underway in Edmonton (and presumably Calgary). 4 files are being assigned to this pilot each week. Right now they're selecting parenting matters heading to Special Chambers. Justices have the discretion to choose files. At the same time the Justice can direct what disclosure needs to occur before the conference. They're aiming to have the conference occur within 4 to 6 weeks. Because there is a settlement compontent, transcripts will not be available unless leave is obtained. I believe it was stated that each side will be expected to make an offer before the conference. If your matter is selected, you will be provided an information sheet. More information can be read here. There is also a "control" group so that the effectiveness of the pilot project may be assessed.
They'll likely have a Town Hall in Edmonton in January.