One of the many functions of legislation is to overrule different aspects of the common law, as need demands, and establish new schema in their place. Family law is no different in this regard than the law of property, torts and contract, particularly following the English Parliament’s seizure of jurisdiction in matrimonial causes from the ecclesiastical courts in 1857. With the passage of time, lovely old torts such as jactitation of marriage, criminal conversation, loss of consortium, enticement of a spouse, restitution of conjugal rights and breach of promise to marry have fallen by the wayside, banned by one provincial act or another as the law on domestic relations became increasingly organized. In place of the old common law and the arcana of bills of divorce and divorces à mensâ et thoro, the federal Divorce Act and the various provincial legislation have given us an almost complete code governing separation and its legal consequences.
However, just because a law establishes a regulatory, justiciable code doesn’t mean that it must be the courts which address disputes covered by that code. Administrative tribunals have long been used to remove different kinds of disputes from the court system for reasons of economy, practicality and social policy; consider, for example, the reasoning possibly motivating the establishment of human rights tribunals, worker’s compensation and employment insurance commissions, and landlord-tenant and utilities tribunals. Each removes a specific class of dispute from the courts’ trial jurisdiction and vests it in the hands of specialist decision-makers cloaked with the degree and type of process necessary to the dispute – a sort of governmental outsourcing of public functions. Section 96 concerns aside, it’s not difficult to imagine other sorts of legal disputes that might be diverted to a specialist tribunal. Municipal bylaw offences, employer-employee disputes, bankruptcies, non-commercial property disputes and even wills and estates matters strike me as potentially all well-suited to an administrative tribunal approach, as do family law disputes.
In this note, I propose an administrative agency that would take family law matters wholly out of the hands of the provincial courts, and largely out of the hands of the superior courts save for the requisite process of judicial review. The agency would include a decision-making tribunal, an independent commission with investigative powers and a family support services department providing families with legal information, parenting education, financial planning, counselling and other assistance.
Before continuing, I must thank Professor Alice Woolley, associate dean of the University of Calgary’s Faculty of Law, who has shared her time and knowledge with me and stimulated much of the discussion that follows.
When government creates a regulatory code, it has, in essence, three choices for the administration of that code. It could keep the matter in-house and have a government department administer the code, as it does with Old Age Security and the Canada Pension Plan. It could divest itself from responsibility for outcomes, and leave the code to be dealt with by the courts, as it does with claims arising from fraudulent preferences and offences under the Criminal Code. Or, it could establish an arm’s-length agency to deal with the matter, as it does with the Canadian Radio-television and Telecommunications Commission and human rights tribunals.
According to Colleen Flood and Jennifer Dolling, the main reasons to establish independent administrative agencies include:
“the need for greater specialization and technical subject-matter expertise to make decisions than is possible or feasible to collect and retain within central government”
“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.”
Utilities commissions, like the Alberta Utilities Commission that “regulates the utilities sector, natural gas and electricity markets to protect social, economic and environmental interests of Alberta,” are excellent examples of agencies dealing with highly technical matters. The AUC, I understand, frequently requires engineers and economists, as well as lawyers, to make its decisions. Landlord-tenant tribunals, like British Columbia’s Residential Tenancy Branch, are good examples of agencies created to keep comparatively minor but common legal disputes out of the courts.
Although administrative tribunals normally have the power to conclusively address legal disputes, they are not courts of law. Rather than depleting tribunals’ toolboxes, however, it seems to me that this actually enriches them by providing a wider array of procedural options and collateral resources. Peter Cane and Leighton McDonald have written that the approach offered by administrative tribunals
“understands the law as one, but by no means the only, technique or tool for influencing human behaviour.”
As such, tribunals are free – with the right sort of enabling legislation – to develop their own policies and process, information and forms, dispute resolution methods and evidentiary requirements. The potential this offers is, particularly in the context of family law disputes, astonishing:
- decision-makers needn’t be judges or even lawyers, but could be subject matter experts with a highly-developed skill set;
- evidence and argument needn’t be given orally, but could be provided in writing, or even reduced to fill-in-the-blanks forms;
- dispute resolution could involve all, some or a hybrid of negotiation, mediation and arbitration;
- alternatively, decision-makers could adopt an inquisitorial approach and take an involved, hands-on approach to the management of pre-hearing and hearing processes;
- tribunal powers could be regulatory or judicial in nature, or some blend of the two;
- the determinations of tribunals could be recommendatory or binding, and in the case of the latter could have the effect of a court order or be enforceable in the same manner as a court order; and,
- tribunals could incorporate an investigative function through an independent agency, as human rights tribunals do with human rights commissions.
There are of course limitations to the nature of tribunals. First, there is the ubiquitous section 96 problem. Second, no tribunal is likely to entirely conquer the vexatious litigant who is truly determined nor those interested in using available processes and judicial reviews as tools of harassment. Third, additional steps and a concomitant amount of delay are inevitable if determinations are not enforceable on their face and must be processed through or be otherwise dealt with in court.
Despite these concerns, the flexibility and other benefits offered by an administrative approach to family law seem to me to carry the day. I also suspect that in the long run administrative tribunals are likely to be more cost effective than courts on a per-file basis. It would be interesting, and perhaps necessary, to conduct a comparison of the cost of tribunals versus the probable cost of processing the same files through the court system.
A Family Services Agency
The family law administrative agency I have in mind would be guided by the overall goal of supporting families through the process of restructuring necessitated by separation, which I’ve written about elsewhere. It would have three departments: a tribunal with decision-making authority; a commission vested with an investigative function; and, a support services provider tasked with supporting families through education, counselling and similar services. The agency would be supported by legislation that, among other things, vests sole jurisdiction in family law matters in the tribunal and limits the right to judicial review to: final contested determinations made by the tribunal; and, final determinations made by consent, where fraud, incapacity or any other ground capable of vitiating a contract is alleged.
The agency would offer families a level of process and support that is proportionate to the importance and complexity of the issues at hand. I expect that the majority of families would not require the tribunal to act in its arbitrative capacity, and could be satisfied merely with its mediation services. Many families will need no support services beyond education about the law and parenting after separation. The investigative services of the commission would likely only be required in those few situations where mobility, allegations of alienation or abuse, difficult financial or tax problems or claims of deceptive disclosure or non-disclosure are at issue. Some families, of course, will require the services of all three departments.
The Support Services Department
Families would enter the family services agency through the support services department and be assigned a guide who would work with the family throughout the process, assessing needs and service requirements, seeing that those needs are met and liaising with the commission and the tribunal.
The guide would conduct an initial brief triage to identify: any urgent problems that must be addressed as soon as possible, along with less urgent issues that will need to be addressed sooner rather than later but can nonetheless wait; the family’s presenting legal issues and any areas of agreement; and, the nature of the support services the family is likely to require. Where urgent problems exist, the guide would refer urgent problems to the tribunal and act as liaison between the family and the tribunal to set up the hearing. Otherwise, the guide would begin prioritizing services for the family.
Beyond this initial triage phase, the role of the guide would involve: acting as an interface between the family, the tribunal, the commission and support services; helping the family navigate its way through the family services agency; identifying issues appropriate for investigation by the commission; and, advocating within the agency for the support and wellbeing of the family as necessary, until a final resolution of all issues is reached.
Families, other than those who enter the agency with a settlement in mind and need no support services, would be required to attend education sessions about family law, dispute resolution and the role and function of the agency, and, where there are children, a parenting after separation course, all of which would be arranged by the family guide. Families would also be required to exchange documents, as identified by the family guide, relating to the care of children, support, property and debt.
Services would be provided beyond these obligations as the needs of each family suggest. These services could include:
- parenting assistance and education;
- training and coaching on post-separation cooperation and communication;
- counselling for children and adult family members;
- assistance with and education on financial planning and money management;
- housing and employment assistance;
- consultations with on-site family law lawyers, including for independent legal advice and assistance with negotiations;
- collaborative dispute resolution, provided by on-site lawyers, coaches, child experts and financial experts; and,
- drafting separation agreements, final contested determinations made by the tribunal, and final determinations made by consent.
The Family Services Commission
The purpose of the family services commission would be to assist the family and the tribunal in the gathering of information. I do not imagine the commission adopting the quasi-prosecutorial role taken by human rights commissions, but rather as a neutral investigator providing services as requested by the family guide and the tribunal.
The work of the commission would likely be limited to financial and psychological enquiry, and the commission would accordingly be staffed with experts in taxation; experts in pensions, real property and personal property; valuators of pensions, real property and companies; accountants; clinical counsellors; and, psychologists. On the fiscal side of things, I can imagine the commission being tasked with:
- assessing the adequacy of disclosure;
- valuing companies, pensions and real property;
- recommending strategies to minimize taxes resulting from the division of property;
- recommending strategies to optimize the family’s income, expenses and overall financial health following separation;
- investigating claims that a spouse has concealed or wasted property;
- assessing income and potentially making recommendations as to income when the imputation of income is a possibility;
- child support calculations and recalculations;
- spousal support calculations;
- determining a spouse’s capacity to pay in circumstances where arrears of support are owed;
- assessing the employability of a spouse;
- providing financial expertise as necessary to support collaborative dispute resolution processes; and,
- providing expert evidence as a witness or otherwise as required by the tribunal.
On the mental health side, I can imagine the commission being asked to:
- investigate claims of physical, emotional or sexual abuse;
- investigate claims of malicious alienation;
- prepare reports on the views and wishes of the children;
- prepare parenting and custody assessments;
- propose plans for the post-separation parenting of the children;
- identify and propose education, services, treatments and therapies that will improve a person’s capacity to parent and cooperate with the other spouse;
- recommend mental health and physical health treatments and therapies for the children where the parents cannot agree;
- assess the employability of a spouse;
- provide coaching and child expertise as necessary to support collaborative dispute resolution processes; and,
- provide expert evidence as a witness or otherwise as required by the tribunal.
The commission should have the powers necessary to conduct such investigations, including: the power to subpoena documents from the spouses and third parties; the right to enter upon and in properties; the power to compel the physical and psychological examination of a person; and, the power to conduct examinations for discovery.
The Family Services Tribunal
The family services tribunal would provide dispute resolution services through mediation and arbitration as the needs of each family may require. The tribunal would work hand in glove with the family guide, who would coordinate the documentation available to the family and the tribunal, liaise with the commission when investigation is required, set up hearing dates and ensure the availability of the spouses.
The tribunal’s decision-makers would be specialists in family law and in the financial, mental and emotional sequelae of separation, and include lawyers, retired judges, psychologists and financial experts. Tribunal lawyers and psychologists would be available to mediate disputes, but tribunal members acting as mediator would be unable to hear matters involving the same family as arbitrator. Arbitrations would normally be conducted by tribunal lawyers, but could be conducted by the lawyer with tribunal psychologists and financial experts as a panel when the circumstances of the family and complexity of the matters at issue warrant.
The tribunal would have rules, forms and processes created specifically for family law matters, and all printed material would be written in plain language comprehensible to a Grade Ten graduate. Forms would be composed of check-boxes and fill-in-the-blanks statements, avoiding open-ended questions to the extent possible, to minimize systemic incentives to conflict. The spouses would be referred to by their names, not as plaintiff, applicant, claimant, defendant or respondent, to humanize and personalize the process for the spouses and to minimize the potential for conflict.
Mediation would be available at the request of the spouses and the family guide, and at the direction of a tribunal member functioning as arbitrator for the family. Mediation would be evaluative and be informed by any reports or assessments prepared by the commission. Mediation could result in consent determinations on an interim or final basis, on some or all of the matters in dispute.
Arbitration hearings would presumptively be conducted on an inquisitorial basis, with the arbitrator taking the lead in questioning witnesses. The arbitrator would have the ability to subpoena witnesses and to shape the hearing process in a manner that is proportionate to the importance and complexity of the issues, which might include: limiting the number of witnesses; requiring that all or some evidence be given by affidavit; allowing hearsay; admitting unsworn evidence such as letters and emails; and, requiring that argument be provided partially or entirely in writing. Whatever approach the arbitrator takes to the hearing, the ultimate goals must be to ensure proportionality and procedural fairness.
Witnesses from the commission appearing at arbitration hearings would appear as witnesses for the arbitrator, not as the witness for a spouse. To the extent that commission staff could be construed as advocates, they would be advocates for the family as a whole and for a fair outcome that best serves the needs and interests of the family.
Arbitrators would have the power to make interim and final determinations, including determinations for the protection of property, determinations for the protection of people, interim and final determinations going by consent and variation determinations. The tribunal’s enabling legislation would:
- stipulate that determinations of the tribunal have the force and effect of a court order and may be enforced as a court order;
- give the tribunal the power to make collateral determinations as necessary for the enforcement of determinations;
- allow the tribunal to impose fines or draw adverse inferences for a spouse’s failure to comply with determinations, the rules of the tribunal and disclosure obligations; and,
- give the tribunal the power to determine that a spouse is behaving in a manner that misuses or frustrates the tribunal process, and impose limits or conditions on the spouse’s use of tribunal processes as a consequence.
The enabling legislation would also limit the right to judicial review to final determinations of the tribunal and to determinations made by consent where circumstances are claimed to exist that would support the vitiation of a contract.
This proposal is, I know, incomplete. The range of social, economic and mental health services offered by the support services department could be either widened significantly or narrowed. The authority of the commission must be clarified, particularly in respect of third-party persons and entities. The process used by the tribunal and the circumstances that would trigger a panel of more than one tribunal member need to be clarified. The capacity of the tribunal to make divorce orders, deal with contempt and breach of determinations and handle interjurisdictional problems must also be addressed.
As for the agency as a whole, the scope of the legal matters it deals with could expand to include child protection matters, and perhaps even youth criminal justice issues. The overall cost of the agency must be assessed against not just the present cost of family law matters to the court system, but the corollary costs of separation that are presently born by the government agencies whose services I propose bundling into the offerings of the support services department.
These are all significant issues, to be sure. However, I am deeply struck by the extraordinary potential offered by an administrative approach to the resolution of family law disputes, the most important of which in my view are: the use of specialist, highly trained decision-makers; the ability to address separation and its legal consequences in a holistic, supportive manner aimed at fostering the wellbeing of the separated family; and, the extraordinary range of procedural options available to develop a less adversarial and more accessible approach to family law.