An Administrative Model of Family Law Dispute Resolution

• Author: John-Paul Boyd, QC
• Date: March 09, 2018

In our present family justice system, disputes are presumptively resolved in court, with provincial and territorial legislation acknowledging the possibility of out-of-court resolution with differing, and sometimes indifferent, degrees of emphasis. The Canadian common law tradition of resolving family law disputes in court dates to the establishment of the English Court for Divorce and Matrimonial Causes by the 1857 Divorce and Matrimonial Causes Act, but, apart from custom and legislative preference, there is otherwise no particular reason why it must be the courts which deal with family law disputes.

Traditional court processes have always struck me as the worst possible way of resolving most family law disputes, with the exception of truly intractable disputes and those involving threats to persons and property. (A view shared by many family law lawyers, according to recent research from the Canadian Institute for Law and the Family.) While many courts are expanding the number and nature of non-adversarial dispute resolution services available, such as the family cases conferences provided by the Provincial Court of British Columbia or the judicial dispute resolution hearings available in the Alberta Court of Queen’s Bench, adversarial procedures remain the dominant feature of the litigation process.

However, since the end of the First World War, Canadian governments have increasingly delegated the resolution of varying classes of legal issues to administrative tribunals. Academics Colleen Flood and Jennifer Dolling, in Administrative Law in Context, write that the primary reasons for the establishment of administrative tribunals include:

• “the need for greater specialization and technical or subject-matter expertise;” and,
• “a reluctance to enmesh courts in matters not suitable to judicial review because of their specific nature or the volume of decisions that have to be made.”

As a result, a host of tribunals exist across Canada, including utilities commissions, which rely on the technical expertise of engineers and economists, and residential tenancy tribunals, which address a large number of low-value disputes that would otherwise be dealt with by, and clog up, the courts.

Although administrative tribunals are quasi-judicial in nature and may be vested with the power to conclusively determine legal disputes, they are not courts. They are thus free, subject always to their enabling legislation and the principles of fundamental justice, to develop their own policies and processes, their own rules of evidence and their own dispute resolution methods, adversarial and otherwise.

The time has come, in my view, to experiment with an administrative approach to family law. I suggest that an administrative family services agency be established as a pilot project in a smaller centre, such as Lethbridge, Barrie or Kelowna, for a few practical reasons.

1. Family law disputes are both commonplace and highly demanding of court time. According to a recent Juristat article, while only 34% of civil cases concern family law matters, these cases account for 56% of civil judgments and 61% of civil hearings.
2. Self-representation is more common in family law matters than in other civil disputes. In some jurisdictions the rate of self-representation is as high as 80%, and the numbers continue to climb. According to studies by the Canadian Research Institute for Law and the Family, in 2016, a party was self-represented in a fifth of the cases of family law lawyers and in more than two-fifths of judges’ cases, and more than three-quarters of lawyers and judges attending the 2014 National Family Law Program believed that the number of self-represented litigants had increased over the previous three years.
3. Family law is complex and highly fact-specific, and involves the application of common law and equitable principles, a host of case authorities, as well as legislation. Family law disputes often involve other areas of the law, including criminal law, child protection, tax law, the law of property, the law of contracts and torts, bankruptcy law, creditors’ remedies and company law. Family law disputes also involve difficult psychosocial concerns that are intangible, sometimes intractable, and always difficult to manage in the court system.
4. Implementing a scalable, evaluable pilot project in a smaller centre would, I think, use fewer resources, be easier to organize and adapt, and facilitate public engagement. It could also test other proposals intended to improve access to family justice, including triage...