Family Justice 3.1: Inquisitorial and Abridged Hearing Processes

This note follows up on my previous post, Family Justice 3.0, in which I proposed a partially computerized, settlement-oriented, lawyer-facilitated approach to the resolution of family law disputes. In this note, I will propose two hearing processes aimed at improving efficiencies of time and cost, and increasing access to justice, in cases where: one or both parties are without counsel; and, all parties are represented. This proposal is based on the assumption that the parties are already engaged in court proceedings and that diversionary measures have been exhausted.

Both processes are adaptations of present systems, pruned and reimagined to speed the time family law matters take to be heard, and reduce costs to the system and to the parties as a result. To some extent, both processes fiddle with the certain procedural options we have come to associate with basic elements of fairness and fundamental justice. As such, if implemented, these processes would benefit from the support of rules of court that clearly vest judges with the power to manage hearings and trials in the manner suggested, in order to buttress decisions from appeal and thereby foster judicial creativity.

The first process I describe is intended for cases in which one or both parties are without counsel. Hearings and trials are managed by the presiding judge acting as inquisitor rather than her traditional role as passive auditor of such evidence as the parties choose to present. Pre-hearing case management is proposed to ensure that matters are ready to proceed on the date for which they are scheduled.

The second process is intended for cases in which both parties are represented by counsel and would apply to trials that are expected to take a week or more to conclude. These trials are subject to case management, by the judge who will hear the trial, aimed at providing the parties with that level of process which is proportionate to the importance and complexity of the issues in dispute, and ensuring that matters are ready to proceed when scheduled.

Like my suggestions in Family Justice 3.0, this model is does not propose a fundamental overhaul of family justice. It relies on existing processes and protocols, adjusted and tinkered with, however, so as to streamline hearings, truncate unnecessary procedure and give substance to the principle of proportionality.

 

COURT FORMS: Both Processes

Pleadings are redesigned as fill-in-the-blanks, check-box forms. Parties are not asked to articulate their positions or the facts supporting their claims. Where an issue cannot be reduced to a one-word statement or check-box, the parties are asked to provide facts (“The parenting schedule I propose is:”) not explanations (“I am asking for this parenting schedule because:”). Pleadings are written in the first person, as in the examples above, and in plain language (not “vary” but “change,” for example).

I know that many counsel will regret being deprived of the opportunity to craft pleadings that elegantly and succinctly address the legal elements of each claim, however the purposes of this approach are firstly to ensure the forms are as intelligible as possible and secondly to minimize the available opportunities to cloud the issues and provoke conflict though invective and reference to scandalous behaviour and irrelevancies. (The forms required by the British Columbia Supreme Court Family Rules are good examples of this strategy.) The same reasoning can be applied to the forms required for interim applications as well as the affidavits used in those applications.

Specific forms of affidavit are available for the usual common applications in family law matters, namely child support, spousal support, parenting arrangements, parenting time, guardianship, exclusive occupancy of the family home, personal protection orders and financial protection orders. Preprinted paragraphs, designed as fill-in-the-blanks statements, require the parties to provide the exact evidence usually and minimally necessary for the court to determine the matter. In the case of child support, for example the preprinted portion would require each party to state:

  • the nature of their relationship with each other, including dates of cohabitation and separation and so forth;
  • their ages, sources of income and amounts of income;
  • the names and ages of their children and, in the case of adult children, the nature of their schooling or disability;
  • the children’s present parenting schedule;
  • the children’s extraordinary expenses and cost of each; and,
  • the arrangements for child support since separation.

I’m sure more information would be necessary, along with the usual financial statement, and certainly the affidavits would conclude with an unscripted portion allowing the litigant to set out the necessary facts to address less common issues such as the imputation of income, undue hardship claims and stepparent relationships. The point, though, is to move as much as possible from the usual affidavit format in which the party tells a story to an affidavit, that could very well be in bullet form, in which the party states the required facts without embroidery and embellishment.

 

INQUISITORIAL PROCESSES: One or Both Parties Are Without Counsel

The essential premises of this approach are that:

  1. Court processes are complex and, on occasion, counterintuitive.
  1. The rules of evidence are complex and, on occasion, counterintuitive.
  1. A significant number of Canadians struggle with low literacy, many of whom go to great lengths to conceal their difficulty reading and writing.
  1. Hearings involving one or more litigants without counsel usually take longer to conclude because of litigants’ difficulties with the rules of court, the rules of evidence and the legislation governing their application.
  1. People who are not lawyers, and, in fairness, some lawyers too, often have difficulty sorting out the legally important facts from the fog of emotionally important facts.
  1. People who are not lawyers have difficulty accessing case law and practice resources and are unlikely to be aware of the legal tests that may be applicable to their position.
  1. People without significant experience in chambers and trials find hearings a tremendously stressful experience, and stress impacts on their ability to effectively present their cases and the likelihood that justice will be done.

Interim Applications

An application is commenced by the filing of a motion and supporting affidavit. Upon filing, the court clerk fixes a date for a brief pre-hearing case management meeting and the date for the hearing of the application.

The applicant serves the motion and affidavit on the respondent, along with a blank form of reply and a blank copy of the appropriate form of reply affidavit, and notice of the dates of the case management meeting and hearing.

The respondent files a reply and the reply affidavit at some point prior to the case management meeting and serves these documents on the applicant.

At the case management meeting, the parties appear before the judge who will hear the application. The judge:

Summarizes the relief sought by the applicant and the relief consented to and opposed according to the respondent’s reply,

Verifies that the parties’ understanding of the nature of the application that will be heard and the potential results of the application

Confirms that the preprinted portions of the affidavits are complete

Confirms that the parties will be available on the hearing date.

In the event some of all of the application has been settled, the judge makes an order by consent accordingly. In the event that the evidence is incomplete, the judge identifies the deficiencies, makes orders as to their correction and identifies the consequences that will result from a failure to comply.

On the day of the hearing, the clerk swears the parties in. The judge then summarizes the relief sought by the applicant and the relief consented to and opposed, according to the respondent’s reply, and verifies the parties’ understanding of the nature of matters in issue.

The judge addresses the applicant and asks such questions as may be necessary to understand the applicant’s take on the relevant history of the relationship and the facts motivating the application.

The judge then addresses the respondent to obtain the respondent’s take on the relevant history of the relationship and the facts motivating the respondent’s position on the application.

The judge questions the applicant to obtain the evidence relevant to any legal tests that must be met and are otherwise necessary to determine the case, using both leading and non-leading questions and taking an attitude of enquiry rather than confrontation. The judge then invites the respondent to ask any questions of the applicant arising from the applicant’s answers to the judge; the judge will interject when the respondent’s questions veer away from matters that are not strictly relevant to the application. The judge then invites the applicant to comment on any matters the applicant believes relevant to the application that have not been touched on.

The judge questions the respondent to obtain the evidence relevant to the respondent’s objections, any legal tests that must be met and are otherwise necessary to determine the case. The judge then invites the applicant to ask any questions of the respondent arising from the respondent’s answers to the judge; the judge will interject when the applicant’s questions veer away from matters that are not strictly relevant to the application. The judge then invites the respondent to comment on any matters the respondent believes relevant to the application that have not been touched on.

(I imagine this process of enquiry as being in the nature of a conversation between the judge, the applicant and the respondent. The parties would not be limited in their replies to only answering the precise question asked, but may address any weaknesses in the premise of the question and offer further information relevant to the question.)

Assuming that sufficient evidence has been provided to determine the issue, the judge delivers an oral judgment from the bench if possible. In this judgment, the judge will outline the matters in dispute, the parties’ positions, the judge’s findings of fact and the law relevant to the application, and explain how the law relates to those facts. The judge concludes by summarizing the precise orders made, which will then be drafted by the court clerk, entered and distributed to the parties.

Trials

Much the same process will be followed at trial as at interim applications, but with a two-stage case management process and an adapted approach to the questioning of non-party witnesses.

At the first case management meeting, the parties appear before the judge who will hear the application. The judge:

Summarizes the claims at issue and confirms the positions of the parties.

Determines the disclosure necessary to address the claims at issue and makes orders for the same.

Determines the need for expert evidence and makes directions for the retainer of any experts as neutral experts of the court and for the delivery of their reports.

At the second case management meeting, the judge:

Confirms that the parties will be available on the hearing date.

Confirms that disclosure has been made as ordered at the first meeting, and that the experts’ reports are complete and have been delivered.

Discusses the witnesses that the parties intend to call and critically assesses the nature and necessity of their testimony.

In the event some of all of the claims have been settled, the judge makes an order by consent accordingly. In the event that any aspect of the required disclosure is incomplete, the judge identifies the deficiencies, makes orders as to their correction prior to trial and identifies the consequences that will result from a failure to comply, including any adverse inferences that may be drawn.

Trial proceeds in the same manner as interim applications are heard, save that the experts present their findings under the judge’s questioning before the judge questions the parties, and that, once the parties are questioned, the witnesses for each party are called in alternating order.

The judge questions each witness to obtain the evidence relevant to the case, using both leading and non-leading questions and taking an attitude of enquiry. The judge then invites the party not calling the witness to ask any questions of the witness arising from the witness’ answers to the judge; the judge will interject when the party’s questions veer away from matters that are not strictly relevant to the application. The judge then invites the party calling the witness to ask any questions of the witness arising from the witness’ answers to the judge or to the other party.

 

ABRIDGED PROCESSES: Both Parties Have Counsel

The premises of this approach are that:

  1. The rules of court offer a superabundance of process and procedure that is not strictly required to adequately address the majority of family law cases.
  1. We frequently exhaust the full panoply of these procedural options not out of necessity but from fear of imperfect justice and complaints to the law society.
  1. Exhausting the available procedural options often delays the resolution of our clients’ cases with no appreciable impact on the outcome of those cases.
  1. The relatively high cost of legal services frequently results in individuals exhausting their ability to pay for those services before their legal matters conclude. If a trial is necessary, clients are more likely able to pay for counsel to run a two or three day trial than a two or three week trial.
  1. Delay and cost are significant barriers to justice for individuals involved in family law disputes.
  1. Lengthy trials consume a disproportionate amount of judicial time and court resources at a significant cost to the system, in terms of both money and the capacity of the system to deal with the increasing demands placed upon it.

Case Management

Counsel and the parties are required to attend a case management meeting before trial dates will be fixed. The case management meeting is really the core of process and is presided over by the judge who will hear the trial.

At the outset of the case management meeting, the judge:

Confirms the claims advanced, agreed to and opposed, and makes any final orders by consent that can be made prior to the resolution of the contested claims.

Confirms that adequate disclosure has been made, that counsel are satisfied with the steps taken toward discovery and that such experts’ reports as may be necessary are underway and will be complete well in advance of trial.

Discusses with counsel whether the contested claims cannot be resolved because of a dispute about the facts or a dispute about the law, or some other reason.

Once these preliminaries matters have been dealt with, the judge turns to counsels’ time estimates and means of reducing the length of time the trial will actually take, bearing in mind the consequences to the parties and the judicial system of lengthy trials and the inevitable fact that dates for short trials can be found far sooner than dates for long trials. The options available include:

  • limiting the number of days, or hours, available for each side to present their case;
  • directing that the matter proceed as a summary trial, with all evidence presented by affidavit;
  • restricting the number of witnesses each party will be entitled to call;
  • placing time limits on the examination of the parties and their witnesses;
  • directing that conflicting evidence on material facts be provided though out-of-court examinations for discovery and entered at trial by way of transcript;
  • directing that the evidence a party would normally give under examination in chief be provided by affidavit;
  • limiting the witnesses whose evidence will be subject to cross-examination;
  • limiting the number or type of documents that will be entered into evidence;
  • entering all documents as a joint book of documents;
  • requiring all experts to be retained and presented as neutral joint experts;
  • requiring that opening arguments be made in writing and exchanged before the start of trial;
  • limiting the time available for closing oral argument, reply and surrebuttal; and,
  • requiring that closing arguments be made in writing.

Once a potential means of abridgment appropriate to the facts and matters in dispute has been identified, the court then explains to the parties the rights and procedural options that would normally be available to them at an unabridged trial and explains how those rights and options are being limited by the trial process under discussion. The judge then stands the meeting down for a short period so that each lawyer may advise her client about the potential benefits and drawbacks of the proposed process. When the meeting resumes, the judge secures the consent of the parties to the trial process on the record.

Rules and Practice

As I mentioned at the outset, the rationale for this process rests on the proportionality principle. A dispute about the imputation of income is important, to be sure, but ought not consume the same resources and same quantum of legal fees as a dispute about relocation. Curiously, the proportionality principle and the duty of bench and bar to ensure that matters are dealt with as quickly and cheaply as possible are already part of many rules of court. In British Columbia, for example, Supreme Court Family Rule 1-3 says this:

(1) The object of these Supreme Court Family Rules is to

(a) help parties resolve the legal issues in a family law case fairly and in a way that will

(i) take into account the impact that the conduct of the family law case may have on a child, and

(ii) minimize conflict and promote cooperation between the parties, and

(b) secure the just, speedy and inexpensive determination of every family law case on its merits.

(2) Securing the just, speedy and inexpensive determination of a family law case on its merits includes, so far as is practicable, conducting the family law case in ways that are proportionate to

(a) the interests of any child affected,

(b) the importance of the issues in dispute, and

(c) the complexity of the family law case.

Similar statements can be found in s. 1.2 of the Family Law Rules of Alberta, r. 1.04 of the Court of Queen’s Bench Rules of Manitoba, r. 1.02.1 of New Brunswick’s Judicature Act, r. 1.03 of the Family Court Rules of Nova Scotia, r. 56A.02 in Newfoundland and Labrador, and rr. 2 and 17 of Ontario’s Family Law Rules. The point, however, of explicitly describing the options available to counsel and the parties is firstly to embolden judges to greater courage and creativity when condensing standard trial processes, secondly to let litigants know they have options beyond a one-, two- or four-week trial, and thirdly to extend some measure of protection from appeal.

This sort of abridged process is in fact already widely used in the Ontario Court of Justice where such trials are known as rule 2 trials or focused hearings. I understand from Justice Stanley Sherr, a brilliant jurist and one of the people most responsible for creating and promoting this process, that these trials are popular among the bar, as they are involved in designing the hearing and it gives their clients greater certainty as to cost and date of resolution, and among litigants, as their cases are heard much more quickly at far less cost.

If you have access to it, an excellent paper by Justice Sherr on his approach to focussed hearings is available from the National Judicial Institute in the materials for their 2014 Family Law Seminar.

John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary

Comments

  1. Mr. Boyd, it appears someone has been transmitting to you, without my knowledge, my sweetest waking dreams. The time is now for the real revolution in family law.

  2. You may be surprised but your suggestions are for the most part already being used and have been used in the Nova Scotia Supreme Court Family Division since its inception. And still we have an “access to justice” crisis. I expect the definition of the crisis depends upon who you talk to. In addition not all judges are comfortable in these courts and so not all use the pre-trial procedures to direct the parties as much as others do. There is still debate about the “proper role of the judge as impartial arbitrator”. Some feel too much active involvement = an injustice. (Horrors a judge down in the trenches with the folk trying to find a solution to their problems – How inappropriate!) However, most judges use these procedures successfully. What more can be done in Nova Scotia? I am unsure.

  3. I am surprised, Beryl, and intrigued! Have there been any appeals claiming want of fundamental justice or procedural justice based on the abridged or inquisitorial process? Has the NSCA been friendly toward judgments resulting from these processes?

    What do you think is needed to address the access to justice crisis in Nova Scotia?

  4. John-Paul, have you ever thought that family law ought to simply be moved out of the courts and into a regulatory tribunal? It’s not like that trivializes family law problems – after all, many of our most important economic endeavours and financial regulations occur through such tribunals. And it seems to me to potentially allow for far more radical change, which may be what’s needed give a system that almost everyone seems to agree is near broken.

    My perspective on this comes from being a regulatory lawyer not a family law one, so there may well be huge problems I don’t see, but it does seem to me to be an idea at least worth exploring.

  5. There’s been some talk about a tribunal format for family law matters, probably following on the heels of BC’s experiment with civil tribunals. I think it’s an idea worth looking at… it would certainly open the door to the appointment of subject matter experts and the development of more flexible rules of procedure and rules of evidence.

    That said, there are times when a court order is what’s needed, such as orders for the non-removal of a child, personal protection orders, financial protection orders and orders for the division of property that are effective as against third-parties, and there are times when the court’s power to punish for contempt occurring ex facie is essential. I wonder, then if there’s a way to merge the systems, somewhat along the lines of the master/justice division of responsibilities.

    I will have to dust off my admin law textbook. Thanks very much, Alice, for this interesting idea.

  6. John-Paul,
    I made a recommendation for a tribunal-format in family law several years ago at a large legal event.

    I was nearly ushered out of the room by the family law practitioners, who suggested that I was minimizing the important issues faced in this field. I still believe that an efficient tribunal could deal with all non-essential routine matters if properly created.

    The other bombshell with tribunals is that in Ontario at least it would subject the area to the scope of practice of paralegals. Family lawyers have been resistant to their encroachment in this area, but at the same time if it was dealing with simple and routine matters I don’t see why it would be a problem once the appropriate competencies were in place.

  7. Thanks for the information, Omar. I think that if a tribunal approach is adopted it needs to be a one-stop forum. (The bifurcation of family law between the provincial and superior trial courts is one of the more serious obstacles to justice.) On the other hand, as I mentioned in reply to Alice, we do have split superior court jurisdiction between masters and justices in a single forum; maybe this model could be applied to a tribunal/court split?

    I’m can imagine why the family law lawyers in your room were perhaps less enthusiastic than they might have been. However, in other jurisdictions like BC, paralegals are assuming a more significant role in family law court proceedings, with the blessing of the law society and without rebellion among the bar.

  8. I agree John-Paul that one stop shopping is required. I guess I don’t see though why a regulatory tribunal would need to be limited to routine matters. Regulatory tribunals in the area of, e.g., WCB deal with claims very similar to those of courts under tort law. Utility regulators deal with complex and often contentious economic matters. Then of course there are tribunals deciding on the construction of facilities with massive impact on property rights and which can be just as contentious as a family law case (see, e.g., every transmission line hearing ever). All of them make orders binding on the parties.

    And regulatory tribunals can be inquisitorial, investigative and expert. They are also subject to judicial oversight.

    I do see risks – the fact of judicial review means that deeply litigious parties can potentially be as cost-imposing on others as ever. But I also think that the cost to the judicial system and to the people involved creates a public interest case for thinking about this sort of more radical change.

  9. The process has many safe guards in respect to due process. Our rules and the way we operate have not been adversely commented upon by the Appeal Court although there are always some cases directing how a specific rule should be interpreted. Because so many cases get resolved early, if you want a trial you can usually get one in six months or less depending on the length of the trial. Discovery fishing expeditions are carefully weeded out at pre-trial appearances and judicial settlement conferences are highly recommended. I do not know that tribunals will provide better access to justice than the system under which we operate. There is always room for improvement but I am not convinced we are in “crisis” except for the reality that a considerable number of people would prefer to have a lawyer (or someone) help them through the process, stand by them, advise them, but they cannot afford that help. In addition some of our laws are complicated for example the child support guidelines – arguments about income determination can be endless; what parent knows how to calculate the net cost of child care…etc.etc.etc.

  10. Thanks very much for this, Beryl. I am heartened to hear how the elevated settlement rate has increased the availability of early trial dates. That’s in line with my gut expectation about front-end loading judicial resources.

    I was once on a rules committee and was arguing for the imposition, across the board, of early case conferences which were them only available with respect to claims for support. The rep from justice objected, saying “but then we wouldn’t have any judges for trials,” which I rather thought was the point of the matter. My expectation was that increased use of dispute resolution process early on would result in a decreased need for judicial resources for trials.

    I also appreciate your comments about weeding out unnecessary discovery. I have sometimes thought that certain counsel insist on exercising the full range of discovery processes either as some sort of autonomic reflex or out of fear of negligence complaints to the law society, rather than out of genuine need. I’ve also noted that when more pragmatic counsel are on the other side, the need for ten years worth of income tax returns and credit card statements, cumbersome lists of documents and frivolous interrogatories disappears.