Systematic and cultural change and the FLA
Just after our province’s Family Law Act, SBC 2011, c 25 (“FLA”) came into force in March 2013, the Canadian Forum for Civil Justice (“CFCJ”) called for “systematic and cultural changes to the way we resolve family conflicts,” saying that Canadian family law is “highly evolved and comprehensive... , [but] the procedures by which this substantive law is invoked are increasingly complex, unaffordable and inaccessible, [and] [w]ithout access to the mechanisms to implement them, the substantive rules have limited value.”1The crux of access to justice issues is that however theoretically good rules are, if they don’t create practical benefit to citizens, they aren’t doing their job.
Access to Justice in family law is especially important because of the stress litigants are under while going through the system. In 1967, psychiatrists Thomas Holmes and Richard Rahe conducted a study which ranked 43 stressful life events, and determined how they correlated with illness. Each event is also given a point value, which indicates how strongly that event correlates with illness. The most illness-inducing events on Holmes and Rahe’s Social Readjustment Rating Scale (“SRRS”) for adults are “death of a spouse” (100 points), followed by “divorce” (73), “marital separation” (65), and “imprisonment” (63). Similarly, the SRRS for non-adults predicts negative outcomes for “divorce of parents” (90), and “marital separation of parents” (69).2
Among other things, the FLA improved access to justice by creating a child-centric approach to resolution of parenting disputes, creating a statutory obligation for “full and true” disclosure (importantly, in Provincial Court as well), giving the Provincial Court latitude to control litigant conduct through penalties and posting of security, and creating a clear preference for out-of-court resolution.
Under the FLA, family law litigants have access to a huge array of alternative dispute resolution (“ADR”) options to avoid, embellish, or follow-through with the normal course of litigation. Regulated ADR actors include family law arbitrators, mediators, and parenting coordinators (Family Law Act Regulation, BC Reg. 347/2012). Other “non-traditional” ADR practitioners include divorce coaches, experts on children, real estate and business valuators, the Family Maintenance Enforcement Program, the Ministry of Children and Family Development, and lawyers who are more commonly offering collaborative divorce and unbundled (limited-scope retainer) options.
Family law in BC has taken great strides to deliver a family law system that improves outcomes of separation and divorce in adults and children. With a large array of options that don’t involve litigation, and no best-practice guidelines on how lawyers ought to employ the various process options available to their clients, how the FLA will impact the culture around changing families in British Columbia remains in question. What is certain, however, is that a family lawyer’s role isn’t just to assist clients in resolving disputes through court, but to as much as possible help them create positive post-separation outcomes through at least the consideration, if not the use, of the other options available to them.
- Meaningful Change for Family Justice: Beyond Wise Words, April 2013. ↩
- Wikipedia contributors. “Holmes and Rahe stress scale.” Wikipedia, The Free Encyclopedia, 12 Jun. 2017. Web. ↩
Brandon Hastings (bhastings.com) is a lawyer, legal futurist, and civil and family mediator based at Quay Law Centre in New Westminster, BC. Among other things, Brandon co-founded Vancouver Legal Hackers, sits on CBABC’s Court Services Committee, and occasionally works with the BC Ministry of Justice on legal technology projects.