Family Justice 3.0: a Settlement-Oriented, Lawyer-Facilitated Hybrid Approach

The family justice system as we know it is in crisis. I think we’ve reached consensus on this point, as the truckload of recent reports from the national Action Committee on Access to Justice in Civil and Family Matters, the Canadian Bar Association and a handful of law societies seems to suggest. Whatever disputes are left likely centre on the extent to which the system needs to be rebuilt, how it ought to be rebuilt and how the rebuild will be funded.

In recent commentaries I have expressed the view that how we do family justice needs to be radically rethought in this the age of the litigant without counsel, as well as some concern that the current efforts toward change are not undertaking as fundamental a reformation as perhaps they might. Quite reasonably, this prompted more than one reader to ask the questions thus begged: What would a fundamentally different system look like? How should we do family law? I don’t, of course, pretend to have an answer. I do, however, have some suggestions, and I apologize for the excess of hubris.

In this note, I will explore one such model of family justice. I’m calling this model family justice three-point-oh, firstly to allow for the possibility of future notes suggesting different models, secondly because the whole two-point-oh thing has been overdone in recent years, and thirdly because it implies a discontinuity from family justice one-point-oh, the system we have now, and whatever system may result from our present reformatory efforts.

In this model, a lawyer acting as amicus guides the parties through a process aimed at finding settlement but concluding with trial if settlement cannot be reached. The lawyer, who must be exempt of the usual conflict rules, provides the parties with evaluative advice throughout, including as to the merits of each party’s position and the providence of each settlement proposal. The model also suggests a hybrid process in which the steps leading to resolution rely on computer-based determinations of support and asset division and the recommendations of a neutral counsellor or psychologist for the children’s parenting arrangements. Ultimately, the parties, and the judge at trial, may adopt or reject the counsellor’s recommendations and the financial calculations produced by software; they are however proposed to add an element of objectivity and impetuses to settlement dissociated from one party’s animus to the other.

There are up to six stages to the resolution of a family law dispute in this model. In Step One, the parties meet separately and jointly with a lawyer to learn about the law and the likely outcome of their case, and get some feedback on the feasibility of the results they would prefer. If settlement can’t be reached, the lawyer provides directions about the documents and information the parties must exchange. In Step Two, which only applies if the parties can’t agree on the arrangements for the care of their children, the parties meet separately and jointly with a counsellor to learn about parenting after separation, parental conflict and parenting plans, and get some advice about the arrangements that will likely work best for the children. If an agreement about the children can’t be reached, in Step Three, the counsellor undertakes a parenting assessment that becomes part of the court record and will be relied on if the matter must go to trial. Step Four occurs once the parties have made disclosure. Using software endorsed by the court, the lawyer provides the parties with calculations about support and the division of property which, if the lawyer is satisfied the results are reasonable, become part of the court record and will be relied on if the matter must go to trial.

Step Five is a formal attempt to find settlement through judicial dispute resolution, aided by the lawyer and leaning heavily on the lawyer’s recommendations on financial issues and the counsellor’s recommendations for the care of the children. If settlement is not reached, in Step Six the parties engage in a more formal process of case management that narrows the issues in dispute, establishes a strict framework for disclosure and discovery and concludes with trial.

Is this model really a fundamental overhaul of family justice? No, frankly, it’s not. It assumes the use of existing legal and evidentiary processes and it relies on processes like mediation, discover and trial that we’re familiar with. It could propose a radical simplification of the law, the rules of evidence and the elements of trial. I’ll address these and other concerns in the future; stay tuned for three-point-one.

 

STEP ONE: Initial Consultation and Analysis with Lawyer

1.0 Parties meet separately with a neutral, court-attached lawyer. Lawyer discusses the law, the parties’ circumstances and the range of likely outcomes, and provides evaluative advice with respect to each party’s preferred result. Lawyer assesses for urgency and canvasses possibility of settlement.

1.1 Is there urgency?

Yes

A. Lawyer discusses application for interim order, facts relevant to application, disclosure necessary for application.

B. Lawyer schedules exchange of motion and reply, refers matter to court and schedules hearing.

C. Parties and lawyer appear in court. Lawyer explains application. Judge hears parties and makes order. Judge explains meaning and consequences of order, including the consequences of breach. Court staff prepares order.

GO TO 1.2

Assume that a similar process exists to address urgent interim matters that cannot be settled throughout the remainder of the process.

No

GO TO 1.2

1.2 Do the parties have an agreement?

Yes

D. Parties meet with lawyer together. Lawyer advises of meaning and effect of agreement, and explains that consent order will be made on terms of agreement. Lawyer discuses documents that must be prepared to obtain discretionary orders.

E. Lawyer refers matter to court and schedules hearing.

F. Parties and lawyer appear in court. Lawyer explains agreement and order sought. Judge hears parties on discretionary issues and makes order. Judge explains meaning and consequences of order, including the consequences of breach. Court staff prepares order.

G. Matter resolved.

No

GO TO 1.3

1.3 Parties meet with lawyer together. Lawyer prepares calculations of child support, spousal support and division of property and debt, as applicable, using court-provided program and information provided by parties orally, on oath or affirmation. Lawyer canvasses possibility of settlement.

1.4 Do the parties have an agreement on support and property?

Yes

D. Parties meet with lawyer together. Lawyer advises of meaning and effect of agreement, and explains that consent order will be made on terms of agreement. Lawyer discuses documents that must be prepared to obtain discretionary orders.

E. Lawyer refers matter to court and schedules hearing.

F. Parties and lawyer appear in court. Lawyer explains agreement and order sought. Judge hears parties on discretionary issues and makes order. Judge explains meaning and consequences of order, including the consequences of breach. Court staff prepares order.

GO TO 1.5

No

H. Lawyer provides binding direction on minimum documents that parties must exchange and date by which disclosure of documents must be completed. Lawyer specifies consequences of failure to make disclosure, including inferences that will be drawn.

I. Lawyer’s direction is added to court record.

GO TO 1.5

1.5 Do the parties disagree about the post-separation care of the children?

Yes

GO TO 2.0

No

GO TO 4.0

 

STEP TWO: Initial Consultation and Analysis with Counsellor

2.0 Parties meet separately with a neutral, court-attached counsellor or psychologist. Counsellor discusses the parties’ circumstances and the circumstances and history of care of their children, as well as parenting after separation, the effect of conflict on children, age-appropriate parenting plans and the centrality of the children’s best interests in future decision-making. Counsellor canvasses possibility of settlement.

2.1 Do the parties have an agreement on the care of their children?

Yes

J. Parties meet with counsellor together. Counsellor advises of advisability and operation of agreement in light of children’s best interests. Counsellor refers parties to lawyer.

D. Parties meet with lawyer together. Lawyer advises of meaning and effect of agreement, and explains that consent order will be made on terms of agreement. Lawyer discuses documents that must be prepared to obtain discretionary orders.

E. Lawyer refers matter to court and schedules hearing.

F. Parties and lawyer appear in court. Lawyer explains agreement and order sought. Judge hears parties on discretionary issues and makes order. Judge explains meaning and consequences of order, including the consequences of breach. Court staff prepares order.

GO TO 4.0

No

GO TO 3.0

 

STEP THREE: Evaluation by Counsellor

3.0 Counsellor or psychologist determines data needed to prepare plan for post-separation care of children (views of children, interview of collaterals, psychological testing, review of collateral documents), advises parties of process and provides completion date. Counsellor conducts assessment and formulates recommendations.

3.1 Parties meet with counsellor together. Counsellor summarizes and explains recommendations, which may include recommendation that one or more of the parties and the children attend counselling for specified purposes. Counsellor canvasses possibility of settlement.

3.2 Do the parties have an agreement on the care of their children?

Yes

J. Parties meet with counsellor together. Counsellor advises of advisability and operation of agreement in light of children’s best interests. Counsellor refers parties to lawyer.

K. Counsellor’s recommendations are added to court record.

D. Parties meet with lawyer together. Lawyer advises of meaning and effect of agreement, and explains that consent order will be made on terms of agreement. Lawyer discuses documents that must be prepared to obtain discretionary orders.

E. Lawyer refers matter to court and schedules hearing.

F. Parties and lawyer appear in court. Lawyer explains agreement and order sought. Judge hears parties on discretionary issues and makes order. Judge explains meaning and consequences of order, including the consequences of breach. Court staff prepares order.

GO TO 4.0

No

K. Counsellor’s recommendations are added to court record.

GO TO 4.0

 

STEP FOUR: Evaluation by Lawyer

4.0 Parties meet with lawyer together following deadline for disclosure. Lawyer prepares calculations of child support, spousal support and division of property and debt as necessary, using court-provided program and documents provided by parties, applying inferences stipulated in lawyer’s direction in event disclosure is not made as required. Lawyer verifies concordance between results generated by program and range of likely results if matter proceeds to trial. Lawyer summarizes and explains recommendations. Lawyer canvasses possibility of settlement.

4.1 Do the parties have an agreement on support and property?

Yes

L. Lawyer’s recommendations are added to court record.

D. Parties meet with lawyer together. Lawyer advises of meaning and effect of agreement, and explains that consent order will be made on terms of agreement. Lawyer discuses documents that must be prepared to obtain discretionary orders.

E. Lawyer refers matter to court and schedules hearing.

F. Parties and lawyer appear in court. Lawyer explains agreement and order sought. Judge hears parties on discretionary issues and makes order. Judge explains meaning and consequences of order, including the consequences of breach. Court staff prepares order.

G. If parties do not disagree on the post-separation care of their children, matter closed, otherwise GO TO 5.0.

Partial Agreement

L. Lawyer’s recommendations are added to court record.

D. Parties meet with lawyer together. Lawyer advises of meaning and effect of agreement, and explains that consent order will be made on terms of agreement. Lawyer discuses documents that must be prepared to obtain discretionary orders.

E. Lawyer refers matter to court and schedules hearing.

F. Parties and lawyer appear in court. Lawyer explains agreement and order sought. Judge hears parties on discretionary issues and makes order. Judge explains meaning and consequences of order, including the consequences of breach. Court staff prepares order.

GO TO 5.0

No

L. Lawyer’s recommendations are added to court record.

GO TO 5.0

 

STEP FIVE: Judicial Dispute Resolution

5.0 Parties and lawyer appear in court. Lawyer introduces parties, explains issues in dispute and agreements reached, as applicable, and presents lawyer’s direction, lawyer’s recommendations and counsellor’s recommendations, as applicable.

5.1 Judge explains purpose of JDR and options available to parties (view from the bench, judge-conducted mediation, binding opinion), lawyer explains implications and consequences of each option. Lawyer retires to gallery.

5.2 Judge proceeds with JDR, calling upon lawyer in capacity of amicus as necessary.

5.3 If non-binding JDR process, do the parties have an agreement on the issues remaining in dispute?

Yes

M. Lawyer advises of meaning and effect of agreement, and explains that consent order will be made on terms of agreement.

N. Judge explains meaning and consequences of order, including the consequences of breach. Court staff prepares order. Other consent orders are attached as schedules.

G. Matter resolved.

No

O. Judge schedules case management meeting.

GO TO 6.0

5.4 If binding JDR process, judge explains meaning and consequences of order, including the consequences of breach. Court staff prepares final order. Any consent orders are attached as schedules. Matter resolved.

 

STEP SIX: Trial

6.0 Parties appear in court at case management meeting. Judge explains purpose of trial and expected resolution of case by contested order. Judge schedules dates for completion of further disclosure and discovery processes leading to trial (one or more of document production, examinations for discovery, admissions, interrogatories) as necessary, and canvasses need for expert reports. If expert reports are needed, judge appoints expert and sets date for production of report.

6.1 Judge schedules trial date. Judge schedules trial management meeting on a date ahead of trial but subsequent to the last date for disclosure and discovery process.

6.2 Parties and lawyer appear in court at trial management meeting. Judge canvasses settlement.

6.3 Do the parties have an agreement on the issues remaining in dispute?

Yes

M. Lawyer advises of meaning and effect of agreement, and explains that consent order will be made on terms of agreement.

N. Judge explains meaning and consequences of order, including the consequences of breach. Court staff prepares order. Other consent orders are attached as schedules.

G. Matter resolved.

Partial Agreement

M. Lawyer advises of meaning and effect of agreement, and explains that consent order will be made on terms of agreement.

N. Judge explains meaning and consequences of order, including the consequences of breach. Court staff prepares order.

GO TO 6.4

No

GO TO 6.4

6.4 Court confirms availability of parties for trial, and fixes and explains consequences of adjournment. Judge canvasses and confirms issues settled and issues remaining in dispute. Judge explains to parties that lawyer’s direction, lawyer’s recommendations and counsellor’s recommendations will be considered at trial and compared to final result, potentially with adverse consequences one or both parties if the result of trial accords with recommendations. Judge discusses elements of trial and explains objections, adduction of evidence, subpoenaing of witnesses and related matters.

6.5 Parties appear in court on trial date. Judge hears parties and evidence and makes order. Judge explains meaning and consequences of order, including the consequences of breach. Court staff prepares final order. Any consent orders are attached as schedules. Subject to appeal, matter resolved.

Comments

  1. Eventually we should just give this guy a fancy mayor-chain and a stack of pre-signed blank royal proclamations and let him fill in what makes sense. Good show, old boy!
    I swear you make this look easy.

  2. I think this approach of considering other structures for dispute resolution are the answer, frankly. My question, however, is what you anticipate the cost to be above?

    Lately, I’ve been inclined to take a two-stage approach.

    1) Break down about a hundred or so family law files which went to trial.

    2) Analyse in a scientific fashion what they cost, and what the constituent elements of that cost were.

    3) Start with a premise: “The $10,000.00 Trial” – and then deconstruct that trial, looking to your data, to establish efficiencies to create the $10,000.00 trial, which most Canadians COULD afford in middle class and up – and offer the $10,000.00 trial structure as an alternative track where assets are less tan $X.

    Just another thought.

    But keep up the great work JP!

  3. Thanks for the comment, Rob.

    I doubt that the model I’ve described would cost terribly much for either the state or the parties. The parties would need to bear the usual costs of disclosure, the cost of independent legal advice and the costs associated with trial if they get to trial.

    The state would be paying for up to three hours of the lawyer’s time for Step One, one and a half hours for Step Four, and another one a half hours for Step Five. At say $300 an hour, that’s $1,800 and tacking on another $200 for overruns takes us to $2,000 for the most disputatious files and probably a lot less for average files. The judge only comes in at Step Five, and the judge’s maximum time involvement with case management, trial management and trial hearings is only triggered if the parties go all the way through to trial. The cost of the counsellor only ramps up if the counsellor must prepare recommendations, and these needn’t be the $40,000 custody assessments common in Alberta. They could certainly be done for $4,000 or less. (The cost of a full-blown custody assessment in BC ranges from $6,000 to $12,000, by the way.) There will also be administrative, court services costs, but I expect these will also be less than in the current system.

    Expense will also be required for the software that the lawyer would be relying on, however the difficult part of this has already been developed by DivorceMate, and their excellent child support and spousal support program goes for what, about $1,000 a pop to private lawyers. I don’t think developing the software to perform property division calculations would be difficult; I one wrote a property division guesstimator program in Java in a couple of days.

    I have, however, been talking to people in Alberta Justice about the possibility of measuring the cost of applications and trials for the system, in terms of calculating expenses for materiel and the time of the judge, court administrators, court clerk, sheriff and so on.

    I like your idea of the $10,000 trial… that’s something worth exploring.