Family lawyers hopeful for speedier resolutions but remain skeptical about the outcome
New rules in Alberta regarding some types of civil or family trials will be enacted in January.
The streamlined trial process will take a summary-trial approach, with a few specific rules and procedures created to guide the movement of these cases through the system.
According to a statement emailed to Canadian Lawyer on behalf of Alberta Justice, the court system has opted for this change because “Streamlined trials will allow court resources to be used more efficiently, freeing up court time and increasing Albertans’ access to justice.”
The ministry’s statement explains how the streamlined trial process will work:
“Parties have a joint responsibility to prepare materials for the court that identify the real issues in dispute and agree on the relevant and material facts and records. This will help create a more efficient process and reduce time spent in the courtroom. The streamlined trial process was developed based on recommendations from the Alberta Rules of Court Committee, who engaged with the judiciary and legal profession while developing the recommendations.”
It goes on to explain that “Once the streamlined trial process takes effect on January 1, 2024, any parties involved in a civil or family case in the Court of King’s Bench may apply for a streamlined trial, or the court may decide a streamlined trial is the best option. The court may decide to proceed with a streamlined trial based on whether the matter can be resolved fairly, the complexity of the issues, the financial amounts involved and the court resources available.”
Summary trials aren’t a novel concept in Alberta. They have been an option for people with family court cases, says Tracy Brown of the Edmonton-based Brown Law Group. Brown is a registered collaborative family lawyer and a member of the Alberta Family Lawyers Association (AFLA) steering committee.
Brown explains that as an organization, AFLA is in favour of the updated rules and welcomes changes to make access to justice faster and more affordable for families embroiled in legal disputes.
She is also a proponent of summary trials and says they can be helpful in the right circumstances.
“I have found the summary trial process to be extremely effective and helpful to assist people avoid inordinate costs to get a full and final resolution, usually when every other avenue to resolution was tried. In my experience, having done several summary trials over the last 12 years, it worked relatively well,” she says.
But as with anything, summary trials aren’t perfect, and historically, they have come with some associated challenges. One, explains Brown, is that they leave what she calls “a window of opportunity for an obstruction” open where the respondent could challenge the right to use a summary trial right up until the trial itself.
“What was very effective about the summary trial process previously, which is not reflected in the new rules, was if you were dealing with a very prolonged and protracted dispute and simply needed to get a resolution, you could do that unilaterally.”
She explains that under the new rules, which the association only saw for the first time late last week – meaning that lawyers such as herself are still in the process of familiarizing themselves with the updated procedures – “there’s now a clear provision in the new rule 8.27 that the court may make a cost award for costs incurred as a result of an objection. It’s all very new, but that looks very helpful.”
Brown points to rule 8.25, which makes it clear that streamlined trials will not be considered disproportionate because there are some credibility issues or because there may need to be some oral evidence presented, such as that of an expert witness. She gives the example of an appraiser being questioned and cross-examined about the value of a house to be sold as part of a divorce.
Before the rule change, Brown says it was up to the judge to decide if an hour or two of testimony was permitted. Now, she says, the new rules permit that and won’t allow a little bit of testimony to “obstruct or derail an attempt to resolve the matter with summary trial.”
Although the rules have been established to create a speedier trial process, there is no guarantee that will be the result, especially regarding family law. The AFLA cites the more significant problems of long wait times, underfunding of the court system and the lack of a unified family court designed to facilitate family matters as issues that the streamlined trial process doesn’t address and still needs to be resolved.
Brown also points out that the new system for managing cases has the potential to add extra layers and lengthen the overall court case.
“The new rules set out a process by which one seeks a summary trial. There is a process of securing the procedure in the form of a streamlined trial order or a procedural order. Where there are any issues, they are to be resolved in what is referred to as a case conference or a pretrial conference.”
Creating a multi-step process and going through several stages similar to a “fulsome trial” would create “more process, more expense and more delays for families. And will it adhere to the principle of and aspiration of a truly streamlined process?” Brown asks.
She notes that under the current system, each party is essentially limited to one affidavit (with some minor exceptions). The incoming rules don’t impose any parameters for the evidence, the amount of evidence, or the nature of the process. “It’s a very open-ended process, tailored to the needs of the specific matter,” she says.
Brown also notes that the new rules, specifically 8.28, require parties to prepare the record jointly. She says this is problematic in the most contentious family law cases where cooperation and transparency have entirely broken down and where there might be accusations of violence or one party placing the other in a state of financial vulnerability.
“We’re hopeful, obviously. Creating an accessible, affordable court system is not an easy thing. One of the things we’re looking for, which may still be in the works, is a corresponding protocol or practice note for family matters that prevent a process that ultimately becomes just as unwieldy, just as costly and with as many delays as an actual trial.”