Lawyer Monthly Magazine - September 2021 Edition

In what way has the COVID-19 pandemic and the rise of remote hearings affected the backlog? The pandemic brought a number of challenges for our clients. First, many clients were navigating the ever-changing public policies and trying to co-parent. This is very difficult if the parents do not agree on how to interpret or implement said public health protocols, and the constant messaging of “creating a bubble” and limiting social contacts was confusing to parents who had custody or parenting schedules in place. This created a lot of litigation because there were so many unknowns, and many parents felt the need to go to court to try and change their parenting schedules to reflect the messaging they received from public health. In addition to parenting issues, we also had a number of clients who were suddenly out of work. Many clients lost high-earning jobs and therefore needed an urgent adjustment to child or spousal support. This created more and more cases before the court to adjust support, particularly if that support was being enforced through the Maintenance Enforcement Program, as it could only be changed with a court order. WWW.LAWYER-MONTHLY.COM | SEP 2021 There was a rocky start in getting remote systems in place for hearings. This was to be expected; our generation had never grappled with a pandemic, and it caught so many of us off-guard. Our courts did their best in assessing the need for remote hearings and implemented that technology quickly, but it still limited how fast you could proceed to court and there were definitely delays in the beginning. You had more people competing for fewer spots. Also, appearing before a judge now requires more steps than it used to, which means it takes longer to get into court and is more costly to clients. In Ontario’s Unified Family Court, family law cases are typically given a court date within 20 weeks after they are deemed ready to procced to trial. Would a wider implementation of this system help to address the litigation backlog in other provinces? Many of those in our judiciary and members of the family profession have worked hard on implementing a unified family court in Alberta, and we hope that one day it will come to fruition. We believe a unified family court would help streamline systems, which will in turn reduce backlogs. During the pandemic, there were several new procedures implemented that changed rapidly. The rules for the provincial court and our superior court were different. With a unified system, the rules and procedures would be consistent for all families and would be more predictable for lawyers and the public in general. This would avoid missteps and create a lot of certainty and consistency. It would help save costs for clients, and more importantly, it would create greater public confidence in our system. What advice would you give to families facing a lengthy struggle to have their case heard? Our advice is to “focus on the big picture”. Litigation is not always the answer, and in fact, we always review settlement and alternative dispute resolution options with our clients before going to court. We offer mediation, collaborative family law, and arbitration in our firm to meet these needs. Sometimes a small gain in property or support does not justify the cost and effort that is expended in court to get there. For parenting, we always tell clients that the most important rule is to do what is in the children’s best interests. Our lawyers and courts are well-versed in the work done by the Alberta Family Wellness Initiative to teach us how conflict and toxic stress harms the development of children’s brains. Lengthy and drawn- out litigation is not in children’s best interests, and it is important that we try to avoid that if at all possible. Do you expect to see any regulatory changes to address the continuing build- up of cases? At the superior court level, we have seen may changes implemented, including the introduction of a docket system to triage cases. The goal is to have clients attend an early intervention alternative dispute process, particularly when there are parenting issues, in order to reduce conflict between the parties. The benefit of the docket system is to get each matter “ Litigation is not always the answer, and in fact, we always review settlement and alternative dispute resolution options with our clients before going to court. “ I can empathise with children whose parents are going through a separation, as well as the parties themselves. 14