Proposal: Family Docket Court should be disbanded. - FamilyCounsel.ca - resources and tools for Family Law Lawyers

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Proposal: Family Docket Court should be disbanded. Court Procedure - Aug 19, 2021
Agree Disagree Skip 54% in favour out of 39 votes

Anonymous 2018

Calgary Region, Alberta

Morning Chambers was always a place where you could get procedural direction, but it was also a place where substantive but basic matters could be dealt with too. Now we have Docket, and Docket Bypass, and I just don't see the point.

0 2 years ago

Ken Proudman

Executive
view Arbitrator profile
BARR LLP
Edmonton, Alberta

I've been on the fence about this. I do like the idea that courts can try to divert people to ADR first, that disclosure can be addressed before chambers, that we can get in front of a judge without having to spend a lot on drafting documents, that matters with self-reps can be handled more efficiently, and that we can attend virtually so that we don't have to figure out what documents need to be printed.

On the other hand, I've spent more days in court already halfway through this year than I did in each of the past 3 years, and I've had many more special chambers dates than other years. When lawyers are constantly attending to Special Chambers deadlines, that gives them less time to focus on negotiation. On top of adding an extra step, I think the ease of filing in docket has also contributed to this (I had a self-rep who filed 4 docket notices within a few months, and even as a lawyer, it's very enticing to be able to file a document with minimal effort to show your client that something's moving forward). While I understand the frustration of judges and litigants in having to make an imperfect decision in regular chambers based on very limited information, I really don't like the push to send more matters straight to Special Chambers. A lot of the time those regular chambers appearances can make people come to reality (eg someone who opposes spousal support even though the recipient has very strong entitlement). We also used to resolve a pile of matters on the courthouse steps right before regular chambers, when clients tended to most appreciate the risks. Conversely, by the time we get to special chambers, people have often spent so much on legal fees that the sunk costs fallacy makes them more likely to want to see the decision, or unrealistically feel like they've paid to win.

While in theory it's wonderful for people to be able to receive a well-considered decision in Special Chambers or trial, going straight to regular chambers was a much more practical option for most families. Adding an extra step and forcing more to go straight to Special Chambers is a barrier to accessing any justice. While regular chambers was rough justice, that's still preferable to no justice. Ultimately, I voted in favour of your proposal.

On the other hand, I've spent more days in court already halfway through this year than I did in each of the past 3 years, and I've had many more special chambers dates than other years.  When lawyers are constantly attending to Special Chambers deadlines, that gives them less time to focus on negotiation.  On top of adding an extra step, I think the ease of filing in docket has also contributed to this (I had a self-rep who filed 4 docket notices within a few months, and even as a lawyer, it's very enticing to be able to file a document with minimal effort to show your client that something's moving forward).  While I understand the frustration of judges and litigants in having to make an imperfect decision in regular chambers based on very limited information, I really don't like the push to send more matters straight to Special Chambers.  A lot of the time those regular chambers appearances can make people come to reality (eg someone who opposes spousal support even though the recipient has very strong entitlement).  We also used to resolve a pile of matters on the courthouse steps right before regular chambers, when clients tended to most appreciate the risks.  Conversely, by the time we get to special chambers, people have often spent so much on legal fees that the sunk costs fallacy makes them more likely to want to see the decision, or unrealistically feel like they've paid to win.

While in theory it's wonderful for people to be able to receive a well-considered decision in Special Chambers or trial, going straight to regular chambers was a much more practical option for most families.  Adding an extra step and forcing more to go straight to Special Chambers is a barrier to accessing any justice.  While regular chambers was rough justice, that's still preferable to no justice.  Ultimately, I voted in favour of your proposal.

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2 2 years ago - edited 2 years ago

Anonymous 2018

Calgary Region, Alberta

In Calgary, you can get into Family Docket within days. Because it's online, I work on other items while waiting my turn. It's barely a hassle at all. It costs very little to the client. And it avoids the massive waste caused by counsel disagreeing on venue.

0 2 years ago

Wayne Barkauskas, K.C.

Executive
view Arbitrator profile
Wise Scheible Barkauskas
Calgary, Alberta

There is no question that docket adds cost and further delays to an already costly and delayed filled court system. It is designed to help the courts rather than litigants, and makes it even less likely that people will hire counsel to assist them. Courts should want litigants to have counsel and provide them with advantages to doing so, not the opposite.
As I understand it, docket was put in place for at least two reasons: people were going to chambers without any real effort at prior negotiations, and without considering, discussing and planning proper procedural matters in advance of chambers, so much time was wasted doing that. I would say that the same time is now wasted in docket. For those that have done the proper steps though, docket is a complete waste of time because there is no substantive result.
The same results could be accomplished by requiring every application to propose a complete procedure with filing deadlines, proposed forum (morning or special), and mandatory ADR process completed or proposed (unless urgent). If the other side disagrees, then the matter goes to docket to resolve. In the past year, I have been to docket several times now and on only one occasion did a judge have to determine process. In every other case counsel and I had created a complete plan in advance and we just had to read it in. In those cases, the problem was that the endorsements resulting were wrong almost every time creating even more problems. IMO, docket has turned out to be the absolute worst process change I have seen in our courts for 30 years, as well as one of the most dramatic changes, all without advance broad consultation with the bar and litigants.
Done venting....

4 2 years ago

Adam Singer
Wilson Laycraft
Calgary, Alberta

At the outset and for much of the pandemic, Family Docket Court was probably justified and even necessary. At this stage, it appears that its primary purpose is to give the Court - i.e. court administration and judges - much greater control over its processes and thus make life easier for said court administration and judges, rather than to serve the best interests of the public who must engage in legal processes and the counsel who many litigants pay to represent them. It is ironic to recall that, for some time before the pandemic, there was increasing awareness that the Court needed to modernize its operations and start to enter the digital age. Oh well, be careful what you wish for, as the saying goes. It seems unlikely that the Court will be enthusiastic about giving up its current level of control.

2 2 years ago

	Robert Harvie, Q.C. view Arbitrator profile Harvie denBok Pollock Law Office Lethbridge, Alberta Completely agree Wayne. It's a "good in theory" effort, that in reality just adds expense. Completely agree Wayne. It's a "good in theory" effort, that in reality just adds expense. Edit Reset 0 2 years ago

Anonymous 2017

Edmonton Region, Alberta

In defence of docket, I do not think it was meant to have scheduling dates of a few weeks past filing. It is meant to be a place where you can come to court quickly and get funneled quickly in an appropriate direction.

The concept is fine, but some of the execution is not. I think this is mainly because much was rushed. The unified family court was halted, and the courts were looking for a workaround. There was also the matter of the pandemic and trying to use docket to keep people out of the courthouse.

A couple things I like about docket in its current state:
1) It can pump the breaks on some conflict. It can reduce the filing of applications out of a flash of temper.
2) It can be a cheap motivator on certain matters. If someone has not gotten to disclosure, or moved anything ahead and needs a nudge beyond a letter, I do not need to write an entire application and affidavit just to compel compliance.
3) It actually often makes lawyers talk more. Consider that it is not uncommon for a simple application to commence with docket, be adjourned for obtaining counsel, proceed to chambers, then back to docket to compel compliance or follow up on an order, then back to chambers, something that may normally take 3-4 weeks now can take up the greater portion of a year. One side effect is that to accomplish anything the lawyers may have to be a little less "rights" focused, and that's where a lot of family disagreements can actually be properly dealt with (and quicker too). I myself have noticed uptick in cases where counsel have been cooperative for this reason.

I would think some more escape valves could be helpful, though. One idea could be rather than applying to bypass docket, have a system where a lawyer may file an undertaking to the court that they are filing a good-faith application in keeping with their obligations. On that undertaking, if not genuine, a court could impose sanctions, but also could just leave the parties, especially the one with more sophisticated representation, a method to simply proceed and free up docket more for the one who want or need it.

The concept is fine, but some of the execution is not. I think this is mainly because much was rushed. The unified family court was halted, and the courts were looking for a workaround. There was also the matter of the pandemic and trying to use docket to keep people out of the courthouse.

A couple things I like about docket in its current state:
1) It can pump the breaks on some conflict. It can reduce the filing of applications out of a flash of temper.
2) It can be a cheap motivator on certain matters. If someone has not gotten to disclosure, or moved anything ahead and needs a nudge beyond a letter, I do not need to write an entire application and affidavit just to compel compliance. 
3) It actually often makes lawyers talk more. Consider that it is not uncommon for a simple application to commence with docket, be adjourned for obtaining counsel, proceed to chambers, then back to docket to compel compliance or follow up on an order, then back to chambers, something that may normally take 3-4 weeks now can take up the greater portion of a year. One side effect is that to accomplish anything the lawyers may have to be a little less "rights" focused, and that's where a lot of family disagreements can actually be properly dealt with (and quicker too). I myself have noticed uptick in cases where counsel have been cooperative for this reason.

I would think some more escape valves could be helpful, though. One idea could be rather than applying to bypass docket, have a system where a lawyer may file an undertaking to the court that they are filing a good-faith application in keeping with their obligations. On that undertaking, if not genuine, a court could impose sanctions, but also could just leave the parties, especially the one with more sophisticated representation, a method to simply proceed and free up docket more for the one who want or need it.

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1 2 years ago

Anonymous 2021
Calgary Region, Alberta

How does someone bypass Family Docket and have something dealt with on an emergency basis? I have a file where one spouse needs an Exclusive Possession Order asap. There is not enough misconduct on the part of the other spouse to warrant an Emergency Protection Order, but the situation definitely calls for an Exclusive Possession Order. Thanks

0 2 years ago

	Anonymous 2018 Calgary Region, Alberta If this is a Calgary Matter, just go into Family Docket. It's faster than the Emergency process. If this is a Calgary Matter, just go into Family Docket. It's faster than the Emergency process. Edit Reset 0 2 years ago

	Wayne Barkauskas, K.C. Executive view Arbitrator profile Wise Scheible Barkauskas Calgary, Alberta @Anonymous: How ironic, no? @Anonymous: How ironic, no? Edit Reset 0 2 years ago

Anonymous 2018

Calgary Region, Alberta

I get that FDC gives the court more control over process, I just do not understand how FDC gives the court more control over process than morning chambers did. Many an app was looked at in morning chambers, then sent to special. Procedural orders were granted.

According to the Rules of Court, an application must be served five days before the hearing. Now it's five days plus probably weeks because of the FDC endorsement. Seems to slow down rather than speed up.

0 2 years ago

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