Proposals - Other

These proposals let family law lawyers discuss and vote on what changes they think should be made to the law or court procedures. The results can be viewed and shared with legislators and the Courts. The proposals put forth are written by member lawyers, and do not necessarily reflect the views of this website or its administrators. You can view more proposals or make a proposal yourself.

Proposal: Summary Judgment Should be Available for Divorce and FLA matters
Other - Mar 1st

Anonymous2 Comments

Rule 12.48 came in before Hryniak v. Mauldin.

I think it could be useful. Some scenarios

1) No kids. Simply divorce. Parties married for 30 days before separation, and now separated for 5 years. Statement of Claim issued for divorce only. Statement of Defence contests there has been a separation. Is this really something requiring trial? If evidence clearly shows there is no triable issue, why the extra steps?

2) Special chambers sorts out all parenting and support. Justice now sees there remain no further triable issues. Why not have summary judgment as an option to just get it done?

3) Parties are following an agreement they signed, and defendant is just not coming to the table to sign a divorce judgment. Again, no issues in dispute. Does plaintiff really need to be scheduling chambers to set the status quo in place and permission to file for divorce without consent?

I get that there are concerns about it potentially being abused, or not appropriate in murky situations of parenting, child support, spousal support, income, etc. But we could find a better middle ground. Perhaps no summary judgment without leave? Perhaps no summary judgment when there is no interim or final order for support?

Hryniak and Maudlin talks about the "culture shift" - trial should not be viewed as a default approach. Perhaps our rules should take this more seriously? And especially there may be a pragmatic purpose now with things being scheduled many months out that probably don't need that.

Just a thought I had, haven't really weighed the pros and cons, throwing it out there.

93% in favour out of 14 votes

Proposal: No more emails
Other - Feb 21st

Anonymous3 Comments
I bet 90% of legal aid cases went over their allotted hours due to voluminous emails that likely did not accomplish much.

Instant communication brings about many efficiencies, but is absolutely awful in the context of highly charged emotional issues, or for people who have difficult times with emotional management.

Plus, it drives up costs for everyone. Counsel can be driven off a file from the sheer amount of messages transmitted. And because the communication is instant, you often get the unfiltered opinions of others that, in the old days, benefited from sober thought when you had to take greater effort to send a letter and lick a stamp.

So this is a controversial opinion. Maybe food for thought, though. Should there be limits in place for the use of emails? Like they can be used for important court steps - service of materials, exchange of financial disclosure, providing offers. But have an option that parties may insist upon regular correspondence be delivered in other ways. That is already an option, to be fair, but I'm thinking of generally a better culture shift that can be reinforced.

I'll say that docket has really brought about a culture shift in how behaviour was changed. Ambush applications no longer a thing, there has needed to be better manners and discussion on files. This is all good.

On the topic, I think it would also be nice if mean-spirited emails received from a self-rep or an opposite counsel could have a better mechanism. I do not enjoy having to send emails to my client that are meant to harass him or her, but erring on the side that they should see everything. Maybe we get a rule saying we can delete emails that are calculated to cause grief or distress. We then reply saying the email is being deleted per rule 12.435 or whatever. This of course could be abused too, but at least you would maintain an option to deliver things in alternate ways.

We have communication protocols for parents where we ...
67% in favour out of 12 votes

Proposal: Costs Should Be Awarded
Other - Feb 17th

Stephen Harfield of Queck & Associates (Alberta)0 Comments

I have heard judges say they don't like giving costs. They worry about what the impact will be on the family - is this money that should be spent on kids? Will it act as too much of a barrier to get relief?

It seems to generally come down to the fact that someone lost, but they deserve sympathy. Of course these are not legally relevant considerations.

But the fact that costs are not consistently granted impacts how we deal with our files. They do not act as the deterrent or means to settlement they should be if there isn't clear criteria being applied, or whether some excuse will be found about "mixed success".

It brings questions:

1) Are judges the most suited to be dealing with costs in the moment?
2) Should the default for costs in family law not be "forthwith", but "in any event of the cause?"
3) Should there be fixed and discretionary aspects? Like having an application granted, or substantially granted will result in costs for the filing fee at least, and the rest discretionary?
4) Should MEP Act be changed to allow for enforcement of Costs on things other than a maintenance award?

The heavy conscience of our judiciary in dealing with matters may actually be costing people more, not less.

86% in favour out of 21 votes

Proposal: Docket Court needs Rules
Other - Feb 14th

Stephen Harfield of Queck & Associates (Alberta)0 Comments

We should have clarity as to what Justices in Docket Court can do, what possible routes of appeal there might be, amending endorsements, sanctions or costs for doing things like trying to argue cases (ya rascals).

One thing that has been on my mind is the recent 2022ABCA386 decision that confirms counsel should have control over litigaiton strategy for filing response affidavits and questioning. Should docket court be pre-determining whether a response be filed? or be filed before questioning?

I wonder if there is any buzz out there about whether anyone is actually going to put some casing around this process, or whether the actual plan is to continue it as a stop-gap vague thing until more robust rules about a UFC can be developed and rolled out.

88% in favour out of 17 votes

Proposal: Small tweaks to reward, incentivize, simplify
Other - Feb 14th

Stephen Harfield of Queck & Associates (Alberta)0 Comments

Law does a lot to punish bad behaviour but little to reward the things it wants.

Some potential ideas
-waive filing fee for statement of claim if accompanied by disclosure statement
-better tax deductions for using a collaborative process or, at least, in preparation of a consent parenting plan
-allow parties to propose a valuation date on their statement of claim and a defendant to consent or refuse or qualified refuse (eg, accept if divorce completed in less than one year)
-better tax breaks and other incentives for parents who attend counselling, addiction treatment. Or make that actually an explicit factor for best interests of the children, the extent to which a parent acknowledges and seeks assistance.
-mep to take additional 1% of child support payments in escrow and refund at the completion of support in accordance with payment history - always paid? 100% returned. Paid 80% of the time? Get 80% back.
-automatic temporary CLPs on property at land titles upon filing for divorce

Stuff like that. Not saying these are all winners, but just a continued shift towards rewarding early resolution, often in small ways.

71% in favour out of 14 votes

Other - Feb 14th

Anonymous11 Comments

While entering the court, there should be no bowing in front of the judges. They aren't God. Certain cultures forbid this or any bending or bowing to any Human being, irrespective of their world status. Why do we still use these outdated practices from the stone age?

17% in favour out of 18 votes

Proposal: There should be better means to prevent lawyer bullying
Other - Feb 13th

Stephen Harfield of Queck & Associates (Alberta)10 Comments

Mr. Dustin Tkachuk recently raised a good point on a discussion board.

Many of us perhaps turn down files based solely on who the other lawyer is and the potential impact on mental health.

The general observation I have is this. If a lawyer is breaching code of conduct issues in a non-financial way, the law society is slow to act, and also actively encourages raising matters only when a matter is completed to “avoid a sideshow”.

There is not really any good mechanism to address lawyer conduct in the courts. A court’s test to remove a lawyer isn’t whether that lawyer is causing you distress.

I don’t have a solution, but some brainstorming can happen.

-like PAS should lawyers be required to file something about their commitment to behaviour at the outset of a file?
- should their be an automatic application process where both lawyers are removed from a file if they are unable to work together, regardless of the cause?
-or maybe a process where you can “review a play” like in hockey. A process where you can “tax” a lawyer’s behaviour on a file. If you succeed, there is something granted to you, like costs payable by the lawyer. If you lose, you pay.
-mandatory litigation plans filed at the outset of a file?

95% in favour out of 20 votes

Proposal: Start an "Alberta Family Lawyers Advocacy Association"
Other - Aug 24, 2022

Wayne Barkauskas, K.C. of Wise Scheible Barkauskas (Alberta)8 Comments

You will note that the "Criminal Defense Lawyers Association" is very specific and exclusive. It allows them to advocate loudly for their unique interests without jeopardizing other advocacy efforts on other matters (unlike the CBA Criminal Law Section).

Following this lead would mean that the private Family Law Bar (it would have to exclude government lawyers) may wish to set up a similar organization who's purpose is to advocate on behalf of the family bar. It could be that the time has come...

100% in favour out of 26 votes

Proposal: Correct Clerk's interpretation of Section 7 Divorce Act; Rules of Court
Other - Aug 16, 2021

Anonymous3 Comments
The Divorce Act is federal legislation and property issues fall under provincial legislation. The constitution dealt with the division of powers.

The obligations under Section 7 of the Divorce Act have been added to the Claim for Divorce. During the introduction to the changes sponsored by the federal department, it was stated that section 7 was added to the Act for the benefit of reducing conflict over children. There was no indication that Section 7 was intended to apply to any other claim under the Divorce Act.

The Statement by Plaintiff refers to "parenting time", "protecting children", "resolving disputes through family dispute resolution processes", "providing current information required under the Act" and "complying with any Order under the Act". They are all statements that refer to parenting of children which falls under the Divorce Act.

The Clerks insist that every Claim for divorce, even where there are no children, include the Statement of Plaintiff signed by the clients. They will not accept a Claim for filing without that Statement being signed.

There is no jurisdiction to apply the federal Act to the division of matrimonial property which falls under provincial jurisdiction.

Even if they are applying Section 7 to the overall granting of a Divorce, it would be redundant to require up to date information as it relates to the granting of a Divorce, or to comply with the Order for Divorce. No divorce can be granted if the Plaintiff does not provide the required Claim information. In an uncontested divorce, there will be no Order to comply with. The parties receive a Divorce Judgment.

The second issue that arises from the overstepping of the feds is in the Rejection Notice that is used by the Clerks. The Alberta Rules of Court state that only originating processes must be served by personal service. The Rejection Notice used by the Clerks states that if any service other than personal service requires a supplemental Affidavit to be filed to give an explanation why personal service was not used. it seems to imply a requirement ...
93% in favour out of 15 votes

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