|401-17 Church Street Nanaimo|
BC V9R 5H5
Collaborative Law, Mediation,
Litigation and Arbitration
|November 2, 2020|
|Honourable David Eby|
PO Box 9044 Stn Prov Govt
Victoria, BC V8W 9E2
|Via ordinary mail|
I am a lawyer and family mediator based in Nanaimo, BC and a member of the Association of Legal Aid Lawyers Family Law Working Group.
The legal aid system as it relates to family law in British Columbia requires change and modernization. This letter suggests several changes to the family law legal aid system, to improve outcomes for clients and reduce excessive costs to the government.
This letter is based on my approximately 15 years of experience in handling family law and legal aid matters in Australia, during which time I ran one of the largest family law firms in South Australia and handled many thousands of legal aid matters. Although many of the concepts contained in this letter have been approved by the working group, this letter is a personal letter and is not sent on behalf of the working group or the Association.
In 2017, I moved to Nanaimo after marrying my wife from British Columbia – and was called to the BC Bar in 2018. I have subsequently set up my own family law firm in Nanaimo and take on legal aid matters here.
Despite the progressive nature of British Columbia, I have found the legal aid family law system to be archaic and damaging to families when compared to my Australian experience.
In particular, the practice of approving litigation as the default response for family separation matters is an outdated practice and results in poor and costly outcomes.
Competent Family Law Practitioners have a tool shelf with many tools to choose from to resolve a particular dispute.
Litigation is one such tool and is particularly appropriate when one party refuses to participate in a negotiated outcome, has unreasonable demands, or if there are significant risk factors.
However, litigation is not the only tool available to resolve family law disputes – nor is it often a natural fit. Litigation is, and always has been, more naturally a fit with adversarial criminal and civil disputes.
Particularly from the 1920s onwards, family law disputes have been ‘shoehorned’ into an adversarial system that was primarily designed to punish criminals and resolve business disputes. Adversarial approaches are often not appropriate when resolving many types of relationship and children disputes.
There are four usual criticisms of using litigation as the default ‘tool’ to resolve family law disputes:
(1) Children, and ‘rights’ to children, and other relationship matters become subject to an adversarial process involving parties finding and using negative information against the other parent. Parents are dealt with in the same way that criminals are cross-examined for their actions, damaging the ongoing parenting relationship, and limiting their ability to co-parent effectively in the future;
(2) Complicated rules of evidence and procedure work against parties that do not have legal representation and often do not result in a solution that is in the best interests of children;
(3) At the end of a litigated resolution, a stranger to the parents determines what should happen to their children and finances. This limits ‘buy in’ to the resolution; and finally
(4) The financial cost (to the system and to any self-funded parties), time, and stress inherent in litigation.
For these reasons and more, surveys of satisfaction ratings from participants in BC family law litigation show poor ratings – often less than 30% satisfaction.
In recent years, and as litigation has become more costly, more time consuming, and more stressful on participants, there has been an increased focus in other jurisdictions on different tools that can be used to resolve family law disputes. Much of my legal aid time in South Australia was spent in legal aid funded and solicitor-assisted alternative dispute resolution, which had a high satisfaction rating among clients, and was cost and time effective (often shortcutting years of costly legal aid funded litigation).
Basic mediation (without solicitors in attendance), as offered by the Justice Access Centres and private practitioners, has offered a valuable tool despite a lower resolution rate than solicitor-assisted ADR. Another tool, pioneered by lawyer Stu Webb in the 1990s and 2000s, is Collaborative Divorce – with each party being represented by a lawyer also trained in mediation and a ‘team based’ approach to resolution. Further, Med-Arb has evolved in recent years to deal with limitations of basic mediation – it begins with basic mediation but unagreed issues are resolved through arbitration.
Each tool has strengths and weaknesses. For example, basic mediation as offered by JAC relies on parties to be reasonable and communicative – which is not always the case. Parties to JAC mediation also do not have the benefit of legal advice, and often litigate JAC agreements made without advice. Collaborative Divorce can be costly and does not guarantee an outcome. Court based approaches, such as JCC and FCC listings, are still court-based approaches, require litigation to be commenced before starting, take many months to book, and rely on significant and costly court resources to manage. Litigation does work well in cases where one party is non-communicative or is unwilling to negotiate.
The family lawyer is defined as being a ‘family dispute resolution professional’ under Section 1 of the Family Law Act (FLA) and is required under Section 8 to choose the appropriate dispute resolution tool from their ‘tool box’.
Despite the multitude of resolution tools available, legal aid remains focused on litigation as the default solution – despite its low satisfaction rating and high cost to the system.
And under Section 8(2) FLA, solicitors are required to certify that they have considered basic negotiation or other ADR approaches prior to litigation – even in cases when legal aid approves only litigation.
I write to you to suggest that a pilot program be created – offering suitable Legal Aid clients with funding for ‘Solicitor assisted ADR’ to resolve matters more cost effectively, within a much shorter timeframe, and with higher satisfaction levels.
The practicalities of the pilot that I have suggested were, as I understand it, included in a Legal Aid Lawyers submission to the Government made October 16. However, it is suggested that such funding be based on programs rolled out successfully in other jurisdictions and work synergistically with other government programs (such as programs provided by Justice Access Centres) to improve success rates and lower overall cost of justice.
I am happy to meet to discuss further particulars with yourself or your advisors.
Family Law litigation can be heart-wrenching for families, extraordinarily time consuming and expensive for the legal system, and negatively impact children. I am determined to continue advocating for improvements in the legal aid system in BC until substantive changes are made.
I strongly encourage you to consider my proposal as forwarded through the Association of Legal Aid Lawyers and take steps to further improve the legal aid system.
COLLABORATIVE LAW CORPORATION
Per: Nicholas Greer
LL.B, Q.Med, Q.Arb